As filed with the Securities and Exchange Commission on May 18, 1995
Registration Statement No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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TOSCO CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 95-1865716
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
72 Cummings Point Road
Stamford, Connecticut 06902
(203) 977-1000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
WILKES McCLAVE III, Esq.
Vice President and General Counsel
72 Cummings Point Road
Stamford, Connecticut 06902
(203) 977-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
Copies to:
MARTIN H. NEIDELL, ESQ. MICHAEL ROSENWASSER, ESQ.
STROOCK & STROOCK & LAVAN ANDREWS & KURTH L.L.P.
Seven Hanover Square 425 Lexington Avenue
New York, N.Y. 10004-2594 New York, N.Y. 10017
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Approximate date of commencement of proposed sale to public: From time to
time after this Registration Statement becomes effective.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Class Maximum Maximum
of Securities Offering Aggregate Amount of
to be Amount to be Price Per Offering Registration
Registered Registered Unit Price Fee
- -------------------------------------------------------------------------------
Debt Securities .. $250,000,000 100% $250,000,000 $86,208
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
PROSPECTUS (Subject to Completion)
Issued May 18, 1995
$250,000,000
TOSCO CORPORATION
Debt Securities
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Tosco Corporation ("Tosco" or the "Company") may offer and issue from time
to time up to $250,000,000 in aggregate proceeds of its debt securities
each of which will be a direct, unsecured obligation of Tosco (the "Debt
Securities"). The Debt Securities may be offered to the public on terms
determined by market conditions at the time of sale.
The Debt Securities may be issued in one or more series with the same or
various maturities at or above par or with an original issue discount. The
specific designation, aggregate principal amount, authorized denominations,
purchase price, maturity, interest rate (or method of calculation) and time of
payment of interest (if any), any terms for redemption or repurchase, any
listing on a securities exchange or other specific terms of the Debt Securities
in respect of which this Prospectus is being delivered (the "Offered
Securities") are set forth in the accompanying supplement to this Prospectus
(the "Prospectus Supplement"), together with the terms of offering of the
Offered Securities.
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SEE "INVESTMENT CONSIDERATIONS" FOR A DESCRIPTION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PURCHASERS OF THE DEBT SECURITIES.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Debt Securities may be offered directly, through agents designated from
time to time, through dealers or through underwriters. Such agents or
underwriters may act alone or with other agents or underwriters. See "Plan of
Distribution". Any such agents, dealers or underwriters will be set forth in the
Prospectus Supplement. If an agent of the Company or a dealer or underwriter is
involved in the offering of the Offered Securities, the agent's commission,
dealer's purchase price, underwriter's discount and net proceeds to the Company
will be set forth in, or may be calculated from, the Prospectus Supplement. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
May , 1995
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of any offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus or the Prospectus Supplement in connection with the offer made by
this Prospectus and Prospectus Supplement, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or by any Underwriter, dealer or agent. This Prospectus and the
Prospectus Supplement do not constitute an offer to sell or the solicitation of
an offer to buy any of the Offered Securities in any jurisdiction to any person
to whom it is unlawful to make such offer or solicitation. This Prospectus and
the Prospectus Supplement do not constitute an offer to sell or a solicitation
of an offer to buy any securities other than those to which they relate. Neither
the delivery of this Prospectus nor any sale made hereunder or under the
Prospectus Supplement shall, under any circumstances, create an implication that
there has been no change in the affairs of the Company or any of its
subsidiaries since the respective dates of this Prospectus and the Prospectus
Supplement.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company may be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as the regional offices of the
Commission at 7 World Trade Center (13th Floor), New York, New York 10048, and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such information can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such materials can also be
inspected at the offices of the New York Stock Exchange, Inc. and the Pacific
Stock Exchange, Inc., on which exchanges the Company's Common Stock is listed.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement, certain parts of
which have been omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits filed as a part thereof and otherwise incorporated
therein. Statements made in this Prospectus as to the contents of any contract,
agreement or other document referred to are not necessarily complete; with
respect to each such contract, agreement or other document filed as an exhibit
to the Registration Statement, reference is made to such exhibit for a more
complete description of the matter involved, and each such statement shall be
deemed qualified in its entirety by such reference. Copies of the Registration
Statement and the exhibits may be inspected, without charge, at the offices of
the Commission, or obtained at prescribed rates from the Public Reference
Section of the Commission at the address set forth above.
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this Prospectus:
1. Annual Report on Form 10-K for the year ended December 31, 1994.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities hereunder shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Prospectus and the Prospectus
Supplement to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or the Prospectus
Supplement.
The Company will provide a copy of any or all of such documents (exclusive
of exhibits unless such exhibits are specifically incorporated by reference
therein), without charge, to each person to whom this Prospectus is delivered,
upon written or oral request to Joseph Watson, Investor Relations, Tosco
Corporation, 72 Cummings Point Road, Stamford, Connecticut 06902 (telephone
(203) 977-1000).
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IN CONNECTION WITH THE OFFERING OF THE SECURITIES DESCRIBED IN THE
ACCOMPANYING PROSPECTUS SUPPLEMENT, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF SUCH SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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<PAGE>
THE COMPANY
Tosco, through divisions and subsidiaries, is a large independent refiner,
wholesaler and retail marketer of petroleum products, principally on the East
and West Coasts of the United States. Tosco, through its Avon, Bayway and
Ferndale Refineries, currently processes approximately 525,000 barrels per day
of crude oil and other feedstocks into various petroleum products, consisting
chiefly of light transportation fuels (gasoline, diesel and jet fuel) and
heating oil. Tosco has extensive distribution facilities and also engages in
related commercial activities throughout the United States and internationally.
Following the December 28, 1993 acquisition of British Petroleum's ("BP")
petroleum refining and retail marketing system in the Pacific Northwest, Tosco
increased its involvement in petroleum marketing. During 1994, Tosco added BP's
retail marketing assets in California and Exxon Corporation's retail marketing
assets in Arizona. Tosco also acquired the exclusive right to market under the
BP brand in nine Western states.
Tosco also has interests in oil shale properties in Colorado and Utah.
Tosco was incorporated under the laws of the State of Nevada in 1955. Its
principal executive offices are located at 72 Cummings Point Road, Stamford,
Connecticut 06902, and its telephone number is (203) 977-1000.
INVESTMENT CONSIDERATIONS
The following factors should be carefully considered in evaluating Tosco
and the Debt Securities offered hereby.
Volatility of Refining Industry
A significant portion of Tosco's earnings are dependent upon its refining
margins (the difference between the price of refined products produced for sale
and the cost of crude oil). The petroleum refining industry is more volatile
than retail operations. The petroleum refining industry has been volatile and
highly competitive and the cost of crude oil purchased by Tosco and the price of
refined products sold by Tosco have fluctuated widely. The markets and prices
for crude oil and refined products depend upon factors beyond the control of
Tosco. These factors include the demand for crude oil, gasoline and other
refined products, which fluctuate with changes in the economy, price levels and
seasons, the level of domestic production, the availability of imports, the
availability and marketing of competitive fuels, the impact of energy
conservation efforts and the extent of governmental regulation.
Continuity of Operations
Tosco's principal operating assets are the Bayway Refinery and the Avon
Refinery (together the "Refineries"). Tosco's earnings and its ability to
service the Debt Securities will depend primarily upon the continuing operation
of the Refineries. In the past, the Refineries have experienced both planned
(i.e., scheduled maintenance) and unplanned interruptions of their refining
operations. Ownership of multiple refineries gives Tosco the opportunity to
coordinate scheduled major maintenance on its process units at the Refineries.
In addition, Tosco maintains insurance on the Refineries. However, if either of
the Refineries experiences interruptions in supply or operations, Tosco's
business could be materially adversely affected.
Environmental and Governmental Regulations
Tosco is subject to extensive federal, state and local laws and regulations
governing releases into the environment and the storage, transportation,
disposal and clean-up of hazardous waste materials. Future environmental and
other regulations, including regulations relating to fuel quality standards,
could result in increased capital expenditures and operating costs that may
adversely affect Tosco's results of operations and financial condition.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds to Tosco from the sale of the Debt Securities offered hereby will be
used for general corporate purposes, which may include repaying existing
indebtedness or financing acquisitions.
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<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated.
Three Months Year Ended December 31,
Ended ------------------------------------
March 31, 1995 1994 1993 1992 1991 1990
-------------- ---- ---- ---- ---- ----
.47x 2.83x 3.28x 2.71x 3.55x 5.72x
For the purpose of computing the above ratio of earnings to fixed charges,
earnings consist of consolidated income from operations before income taxes and
fixed charges. Fixed charges consist of interest on outstanding debt, one third
(the proportion deemed representative of the interest factor) of net rentals and
amortization of debt discount and expense.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Securities") and the extent,
if any, to which such general provisions may not apply thereto will be described
in the Prospectus Supplement relating to such Offered Securities.
The Debt Securities are to be issued in one or more series (each such
series a "Series") under an Indenture dated as of May __, 1995 (the "Indenture")
between the Company and The First National Bank of Boston, as Trustee (the
"Trustee"). The form of the Indenture is filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Debt Securities
and the Indenture do not purport to be complete and are subject to, and are
qualified in their entireties by reference to, all of the provisions of the
Indenture, including the definitions therein of certain terms. Whenever
particular provisions or defined terms in the Indenture are referred to herein,
such provisions or defined terms are incorporated by reference herein.
General
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder and provides that debt securities of any Series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indenture does not limit the amount of other
indebtedness or securities which may be issued by the Company. However, the
Indenture does limit the ability of the Company's subsidiaries having a
Principal Property to incur Indebtedness and issue Preferred Stock. All Debt
Securities will be unsecured and will not rank below any other unsecured
indebtedness of the Company. The Trustee will authenticate and deliver Debt
Securities executed and delivered to it by the Company as set forth in the
Indenture.
Reference is made to the Prospectus Supplement for the following and other
possible terms of each Series of the Offered Securities in respect of which this
Prospectus is being delivered: (i) the title of the Offered Securities; (ii) any
limit upon the aggregate principal amount of the Offered Securities; (iii) if
other than 100% of the principal amount, the percentage of their principal
amount at which the Offered Securities will be offered; (iv) the date or dates
on which the principal of the Offered Securities will be payable (or method of
determination thereof); (v) the rate or rates (or method of determination
thereof) at which the Offered Securities will bear interest, if any, the date or
dates from which any such interest will accrue and on which such interest will
be payable, and the record dates for the determination of the holders, to whom
interest is payable; (vi) if other than as set forth herein, the place or places
where the principal of and interest, if any, on the Offered Securities will be
payable; (vii) the price or prices at which, the period or periods within which
and the terms and conditions upon which Offered Securities may be redeemed, in
whole or in part, at the option of the Company; (viii) the obligation, if any,
of the Company to redeem, repurchase or repay Offered Securities, whether
pursuant to any sinking fund or analogous provisions or pursuant to other
provisions set forth therein or at the option of a holder thereof; and (ix) any
other terms or conditions not inconsistent with the provisions of the Indenture
upon which the Offered Securities will be offered.
Unless otherwise provided in the Prospectus Supplement relating to any
Offered Securities, principal and interest, if any, will be payable, and the
Debt Securities will be transferable and exchangeable, at the office or offices
or agency maintained by the Company for such purposes, provided that payment of
interest on the Debt Securities will
5
<PAGE>
be paid at such place of payment by check mailed to the persons entitled thereto
at the addresses of such persons appearing on the Security Register. Interest on
the Debt Securities will be payable on any interest payment date to the persons
in whose name the Debt Securities are registered at the close of business on the
record date with respect to such interest payment date.
Debt Securities may be issued only in fully registered form in minimum
denominations of $1,000 and any integral multiple thereof. Debt Securities may
be exchanged for an equal aggregate principal amount of Debt Securities of the
same Series and date of maturity in such authorized denominations as may be
requested upon surrender of the Debt Securities at an agency of the Company
maintained for such purpose and upon fulfillment of all other requirements of
such agent. No service charge will be made for any transfer or exchange of the
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Debt Securities will bear interest at a fixed rate (a "Fixed Rate
Security") or a floating rate (a "Floating Rate Security"). Debt Securities
bearing no interest or interest at a rate which, at the time of issuance, is
below the prevailing market rate, will be sold at a discount below their stated
principal amount. Special United States federal income tax considerations
applicable to any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the applicable
Prospectus Supplement.
The Indenture requires the annual filing by the Company with the Trustee of
a certificate as to compliance with all conditions and covenants contained in
the Indenture.
The Company will comply with Section 14(c) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of the Company to purchase Offered Securities at
the option of the holders thereof. Any such obligations applicable to a Series
of Debt Securities will be described in the Prospectus Supplement relating
thereto.
Unless otherwise described in a Prospectus Supplement relating to any
Offered Securities, there are no covenants or provisions contained in the
Indenture which may afford the holders of Offered Securities protection in the
event of a highly leveraged transaction involving the Company, except to the
limited extent described under the caption "Covenants" as described below. Such
covenants or provisions are not subject to waiver by the Company's Board of
Directors without the consent of the holders of not less than a majority in
principal amount of Debt Securities of each Series as described under
"Modification of the Indenture" below.
At March 31, 1995, the Company had outstanding $300 million of first
mortgage bonds collateralized by its Avon Refinery, $150 million of first
mortgage bonds collateralized by its Bayway Refinery, a revolving credit
facility of up to $450 million collateralized by accounts receivable, inventory
and investments and $5.3 million of other secured debt. At March 31, 1995, the
Company had $273 million of cash borrowings and outstanding letters of credit of
approximately $112 million under such credit facility.
Global Security
Upon issuance, each series of Debt Securities will be represented by a
single global security (the "Global Security") which will be deposited with, or
on behalf of, The Depository Trust Company (the "Depositary") and will be
registered in the name of the Depositary or a nominee of the Depositary.
Upon the issuance of the Global Security, the Depositary or its nominee
will credit on its book-entry registration and transfer system the respective
principal amounts of the individual Debt Securities represented by the Global
Security to the accounts of persons that have accounts with such Depositary
("Participants"). Such accounts shall be designated by the underwriters, if any.
Ownership of beneficial interests in the Global Security will be limited to
Participants or persons that may hold interests through Participants. Ownership
of beneficial interests in the Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary or its nominee (with respect to interests of Participants) and
the records of Participants (with respect to interests of persons who hold
through Participants). The laws of some states require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depositary, or its nominee, is the registered owner of the
Global Security, the Depositary or the nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities represented by the
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<PAGE>
Global Security for all purposes under the Indenture. Except as provided below,
owners of beneficial interests in the Global Security will not be entitled to
have any of the individual Debt Securities represented by the Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest (if any) on
individual Debt Securities represented by the Global Security registered in the
name of the Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security.
None of the Company, the Trustee, any Paying Agent, or the Securities Registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interest of the Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised by the Depositary that, upon receipt of any
payment of principal, premium or interest in respect of the Global Security, the
Depositary immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interest in the principal
amount of the Global Security as shown on the records of the Depositary.
Payments by Participants to owners of beneficial interests in the Global
Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name".
Such payments will be the responsibility of such Participants.
If the Depositary is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue individual Debt Securities in
exchange for the Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have any Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue
individual Debt Securities in exchange for the Global Security for such series.
Further, if the Company so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in the Global Security may, on terms
acceptable to the Company, the Trustee and the Depositary, receive individual
Debt Securities in exchange for such beneficial interests. In any such instance,
an owner of a beneficial interest in the Global Security will be entitled to
physical delivery of individual Debt Securities equal in principal amount to
such beneficial interest and to have such Debt Securities registered in its
name. Individual Debt Securities of such series so issued will be issued in
denominations, unless otherwise specified by the Company, of $1,000 and integral
multiples thereof.
Except as provided above, owners of beneficial interests in the Global
Security will not be entitled to receive physical delivery of Debt Securities in
definitive form and will not be considered the holders thereof for any purposes
under the Indenture. Accordingly, each person owning a beneficial interest in a
Global Security for a series Debt Securities must rely on the procedures of the
Depositary and, if such person is not a Participant, on the procedures of the
Participant through which such person owns its interest, to exercise any rights
of a holder of such securities under the Indenture. The Depositary may grant
proxies and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a holder is entitled to give or take under the Indenture. The Company
understands that under existing industry practices, in the event that the
Company requests any action of holders or that an owner of a beneficial interest
in the Global Security desires to give or take any action to which a holder is
entitled to give or take under the Indenture, the Depositary would authorize the
Participants holding the relevant beneficial interests to give or take such
action, and such Participants would authorize beneficial owners owning through
such Participants to give or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
The Depositary has advised the Company that the Depositary is a
limited-purpose trust company organized under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered under the Exchange Act. The Depositary was created to hold the
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. The
Depositary's participants include securities brokers and dealers (including the
underwriters, if any,), banks, trust companies, clearing corporations, and
certain other organizations, some of whom (and/or the representatives) own the
Depositary. Access to the Depositary's book-entry system is also available to
others, such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a participant either directly or
indirectly.
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<PAGE>
Covenants
The covenants summarized below will be applicable (unless waived or
amended) so long as any of the Debt Securities are outstanding, unless stated
otherwise in the Prospectus Supplement.
Limitation on Liens
The Company will not, and will not permit any Subsidiary to, incur any Debt
secured by a Lien on any Principal Property without making effective provision
for securing all Outstanding Debt Securities of each series having the benefit
of this covenant equally and ratably with such Debt as to such Principal
Property.
With respect to any particular series of Debt Securities, the foregoing
restrictions will not apply to: (i) Liens existing at the date of original
issuance of such series of Debt Securities; (ii) any Liens securing Debt owed by
the Company to one or more Subsidiaries of the Company; (iii) Liens on any
Principal Property of a Person existing prior to the time (A) such Person
becomes a Subsidiary of the Company, (B) such Person merges into or consolidates
with a Subsidiary of the Company or (C) another Subsidiary of the Company merges
into or consolidates with such Person (in a transaction in which such Person
becomes a Subsidiary of the Company); (iv) Liens on any Principal Property
existing at the time of acquisition thereof; (v) Liens on any Principal Property
to secure Debt incurred for the purpose of financing all or any part of the
purchase price or the cost of construction or improvement of the Principal
Property subject to such Liens in an aggregate principal amount not to exceed
the fair market value of such property, construction or improvements; (vi) Liens
on any Principal Property of the Company or any Subsidiary in favor of
governmental bodies to secure certain advance or progress payments pursuant to
any contract or statute; and (vii) Liens to secure any extension, renewal,
refinancing or refunding (or successive extensions, renewals, refinancings or
refundings), in whole or in part, of any Debt secured by Liens referred to in
the foregoing clauses (i) to (vi), so long as such Lien does not extend to any
other property and the Debt so secured is not increased.
Notwithstanding the foregoing, the Company or any Subsidiary may incur Debt
secured by Liens which otherwise would be subject to the foregoing restrictions,
in an aggregate amount which, together with all other such Debt outstanding
secured by Liens and all Attributable Debt outstanding in respect of Sale and
Leaseback Transactions (other than as permitted by the first paragraph under the
"Limitation on Sale and Leaseback Transactions" covenant below), does not exceed
10% of Consolidated Net Tangible Assets.
Limitation on Sale and Leaseback Transactions
The Company will not, and will not permit any Subsidiary to, enter into any
Sale and Leaseback Transaction on any Principal Property (except for a period
not exceeding three years) unless: (i) the Company or such Subsidiary would be
entitled to incur a Lien to secure Debt by reason of the provisions described in
clauses (i) through (vii) of the second paragraph under the "Limitation on
Liens" covenant in an amount equal to the Attributable Debt of such Sale and
Leaseback Transaction without equally and ratably securing all Outstanding Debt
Securities of each series having the benefit of this covenant or (ii) the
Company or such Subsidiary applies within 180 days an amount equal to, in the
case of a sale or transfer for cash, the net proceeds (not exceeding the net
book value), and, otherwise, an amount equal to the fair value (as determined by
its Board of Directors), of the property so leased to (A) the retirement of Debt
Securities or other Funded Debt of the Company or such Subsidiary or (B) the
acquisition of property which constitutes a Principal Property.
Notwithstanding the foregoing, the Company or any Subsidiary may enter into
a Sale and Leaseback Transaction which would otherwise be subject to the
foregoing restriction, provided the amount of Attributable Debt in respect of
such Sale and Leaseback Transaction, together with all other such Attributable
Debt outstanding and all Debt outstanding secured by Liens (other than as
permitted by the second paragraph under the "Limitations on Liens" covenant
above), does not exceed 10% of Consolidated Net Tangible Assets.
Limitation on Subsidiary Funded Debt and Preferred Stock
The Company will not permit any Subsidiary of the Company having a
Principal Property to incur or suffer to exist any Funded Debt or issue any
Preferred Stock except: (i) Funded Debt outstanding under the Bank Credit
Facility; (ii) Funded Debt or Preferred Stock outstanding on the date of
original issuance of the Debt Securities of a particular series; (iii) Funded
Debt or Preferred Stock issued to and held by the Company or a Subsidiary of the
Company; (iv) Funded Debt incurred or Preferred Stock issued by a Person prior
to the time (A) such Person became a Subsidiary
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of the Company, (B) such Person merges into or consolidates with a Subsidiary of
the Company or (C) another Subsidiary of the Company merges into or consolidates
with such Person (in a transaction in which such Person becomes a Subsidiary of
the Company); (v) Funded Debt or Preferred Stock incurred for the purpose of
financing all or any part of the purchase price or the cost of construction of
or improvements to the property of the Company or any of its Subsidiaries in an
aggregate principal amount or liquidation preference, as the case may be, not to
exceed the fair market value of such property, construction or improvements; and
(vi) Funded Debt or Preferred Stock that is exchanged for, or the proceeds of
which are used to refinance or refund, any Funded Debt or Preferred Stock
permitted to be outstanding pursuant to clauses (i) through (v) (or any
extension or renewal thereof) in an aggregate principal amount or liquidation
preference, as the case may be (which, in the case of a Discount Security, shall
be the issue price thereof), not to exceed the principal amount of the Funded
Debt or the liquidation preference of the Preferred Stock, as the case may be,
so exchanged, refinanced or refunded (which, in the case of a Discount Security,
shall be the accreted value thereof).
Notwithstanding the foregoing, the Company's Subsidiaries may incur Funded
Debt and Preferred Stock in an aggregate principal amount and liquidation
preference that does not exceed 10% of Consolidated Net Tangible Assets.
Certain Definitions. The terms set forth below are defined in the Indenture
as follows:
"Attributable Debt" when used in connection with a Sale and Leaseback
Transaction involving a Principal Property shall mean, at the time of
determination, the present value of the total net amount of rent required to be
paid under such lease during the remaining term thereof (including any renewal
term or period for which such lease has been extended), discounted at the rate
of interest set forth or implicit in the terms of such lease or, if not
practicable to determine such rate, the weighted average interest rate per annum
borne by the Debt Securities of each series outstanding pursuant to the
Indenture compounded semi-annually. For purposes of the foregoing definition,
rent shall not include amounts required to be paid by the lessee on account of
insurance, taxes, assessments, utility, operating and labor costs and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Bank Credit Facility" means the bank facility provided for under the
Second Amended and Restated Credit Agreement, dated as of April 7, 1995, as
amended, among the Company, certain of its subsidiaries and the banks that are
or become parties from time to time thereto, as it may be amended, supplemented
or otherwise modified from time to time, and any successor or replacement bank
facility thereto, provided that the aggregate principal amount of borrowings
thereunder does not exceed $450 million.
"Consolidated Net Tangible Assets" means the total of all the assets
appearing on the consolidated balance sheet of the Company and its Subsidiaries,
less the following: (a) liabilities, (b) intangible assets, including, but
without limitation, such items as goodwill, trademarks, trade names, patents and
unamortized debt discount and expense carried as an asset on said balance sheet,
and (c) appropriate adjustment on account of minority interests of other persons
holding stock in any Subsidiary. Consolidated Net Tangible Assets shall be
determined in accordance with generally accepted accounting principles applied
on a consistent basis and shall be determined by reference to the most recent
publicly available quarterly or annual, as the case may be, consolidated balance
sheet of the Company.
"Debt" of a Person means, all indebtedness of such Person which is for
money borrowed.
"Funded Debt" means Debt which by its terms matures at, or can be extended
or renewed at the option of the obligor to, a date more than twelve months after
the date of the Debt's creation, including, but not limited to, outstanding
revolving credit loans.
"Incur" means to issue, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
the payment of, any Debt.
"Lien" means any mortgage or deed of trust, pledge, assignment, security
interest, lien, charge, or other encumbrance or preferential arrangement
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
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upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"Principal Property" means (i) any refining or processing plant (together
with any pipeline, terminal or other facility related to such refining or
processing plant and necessary for its economic operation) or corporate offices,
in any case owned or leased by the Company or any Subsidiary, or any interest of
the Company or any Subsidiary in such property (in each case including the real
estate related thereto) located within the United States of America and (ii) any
Capital Stock of any Subsidiary that owns, directly or indirectly, a Principal
Property of the type described in clause (i).
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than one year after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other similar amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
Events of Default
As to any Series of Debt Securities, the Indenture defines the following
events as "Events of Default": (a) failure to pay interest on any Debt Security
of such series after the interest becomes due and payable and continuance of
such default for a period of 30 days; (b) failure to pay all or any portion of
the principal of any Debt Security of such series when such principal becomes
due and payable at maturity without any grace period; (c) default in the
performance, or breach, of any other covenant of the Company for the benefit of
the Debt Securities of such series that continues for a period of 30 days (or
such other period specified in such other document) after written notice of such
default has been given (i) to the Company by the Trustee or (ii) to the Company
and the Trustee by the holders of at least 25% of the Debt Securities of such
Series then outstanding; (d) the occurrence of a default under any indebtedness
aggregating in excess of $10,000,000 (i) resulting from the failure to pay
principal at maturity or (ii) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity; (e) final
judgments against the Company or any Subsidiary in excess of $10,000,000 which
remain undischarged for 60 days; or (f) certain events of bankruptcy,
insolvency, or reorganization which are voluntary or, if involuntary, continue
for a period of 90 days.
Additional Events of Default may be added for the benefit of holders of
certain Series of Debt Securities which, if added, will be described in the
Prospectus Supplement relating to such Debt Securities. The Indenture provides
that the Trustee shall notify the holders of Debt Securities of each Series of
any continuing default known to the Trustee which has occurred with respect to
that Series within 90 days after the occurrence thereof. The Indenture provides
that notwithstanding the foregoing, except in the case of default in the payment
of the principal of or interest on any of the Debt Securities of such Series the
Trustee may withhold such notice if the Trustee in good faith determines that
the withholding of such notice is in the interests of the holders of Debt
Securities of such Series.
The Indenture provides that if an Event of Default (other than an Event of
Default described in clause (f) above) with respect to any Series of Debt
Securities shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of Debt Securities of
that Series then outstanding may declare the principal amount of, and accrued
and unpaid interest on, all Debt Securities of that Series to be due and payable
immediately. Upon certain conditions such acceleration may be annulled. The
Indenture provides that if an Event of Default described in clause (f) shall
have occurred and be continuing, the principal amount of (and accrued and unpaid
interest on) all Debt Securities of that Series shall ipso facto become due and
payable immediately, without any declaration or other act on the part of the
Trustee or any holder. Any past defaults and the consequences thereof (except a
default in the payment of principal of or interest on Debt Securities of that
Series) may be waived by the holders of a majority in principal amount of the
Debt Securities of that Series then outstanding. The Indenture also permits the
Company not to comply with certain covenants in the Indenture with respect to
Debt Securities of any Series upon waiver by the holders of a majority in
principal amount of the Debt Securities of such Series then outstanding.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, in case an Event of Default with respect to any Series of Debt
Securities shall occur and be continuing, the Trustee shall not be under any
obligation to
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exercise any of the trust powers vested in it by the Indenture at the request or
direction of any of the holders of that Series, unless such holders shall have
offered to the Trustee reasonable security or indemnity. The holders of a
majority in aggregate principal amount of the Debt Securities of each Series
affected and then outstanding shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
under the Indenture or exercising any trust power conferred on the Trustee with
respect to the Debt Securities of that Series; provided that the Trustee may
refuse to follow any direction which is in conflict with any law or the
Indenture and subject to certain other limitations.
No holder of any Debt Securities of any Series will have any right by
virtue or by availing of any provision of the Indenture to institute any
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to the Indenture or for any remedy thereunder, unless such holder
shall have previously given the Trustee written notice of an Event of Default
with respect to Debt Securities of that Series and unless also the holders of at
least 25% in aggregate principal amount of the outstanding Debt Securities of
that Series shall have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceeding as trustee and the Trustee shall
have failed to institute such proceeding within 60 days after its receipt of
such request, and the Trustee shall not have received from the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
that Series a direction inconsistent with such request. However, the right of a
holder of any Debt Security to receive payment of the principal of and any
interest on such Debt Security on or after the due dates expressed in such Debt
Security, or to institute suit for the enforcement of any such payment on or
after such dates, shall not be impaired or affected without the consent of such
holder.
Consolidation, Merger, Sale or Conveyance
The Indenture provides that the Company may consolidate with, or sell,
convey or lease all or substantially all of its assets to, or merge with or
into, any other corporation, if (i) either the Company is the continuing
corporation, or the successor corporation is a domestic corporation and
expressly assumes the due and punctual payment of the principal of and interest
on all the Debt Securities outstanding under the Indenture according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or observed by the
Company and (ii) immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing.
Satisfaction and Discharge of Indenture
The Indenture with respect to any Series (except for certain specified
surviving obligations including, among other things, the Company's obligation to
pay the principal of and interest on the Debt Securities of such Series) will be
discharged and cancelled upon the satisfaction of certain conditions, including
the payment of all principal of and interest on all the Debt Securities of such
Series or the deposit with the Trustee of cash or appropriate Government
Obligations or a combination thereof sufficient for such payment or redemption
in accordance with the Indenture and the terms of the Debt Securities of such
Series.
Modification of the Indenture
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities of each Series at the time outstanding
under the Indenture, to execute supplemental indentures adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the
Indenture or any supplemental indenture with respect to the Debt Securities of
such Series or modifying in any manner the rights of the holders of the Debt
Securities of such Series; provided that no such supplemental indenture may (i)
extend the stated maturity of the principal of any Debt Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of any interest thereof, or reduce any amount payable on
redemption thereof (including any amount with respect to original issue
discount), or reduce the amount of original issue discount security payable upon
acceleration or provable in bankruptcy, or impair or affect the right of any
holder of Debt Securities to institute suit for payment thereof, or, if the Debt
Securities provide therefor, any right of repayment at the option of the holders
of the Debt Securities, without the consent of the holder of each Debt Security
so affected, or (ii) reduce the aforesaid percentage of Debt Securities of such
Series, the consent of holders of which is required for any such supplemental
indenture, without the consent of
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<PAGE>
the holders of all Debt Securities of such Series so affected. Additionally, in
certain prescribed instances, including the establishment of the forms or terms
of Debt Securities of any series, the Company and the Trustee may execute
supplemental indentures without the consent of the holders of Debt Securities.
Defeasance and Covenant Defeasance
The Indenture provides, if such provision is made applicable to the Debt
Securities of any Series, that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, and interest on, all Debt Securities of such Series when
due) ("defeasance") or (b) to be released from its obligations with respect to
such Debt Securities upon the deposit with the Trustee, in trust for such
purpose, of money and/or Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money, in an
amount sufficient (in the opinion of a nationally recognized firm of independent
public accountants) to pay the principal of and interest, if any, on the
outstanding Debt Securities of such Series, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor. Such a trust
may be established only if, among other things, the Company has delivered to the
Trustee an opinion of counsel (as specified in the Indenture) with regard to
certain matters, including an opinion to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and discharge and will be subject to
federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred. The Prospectus Supplement may further describe these or other
provisions, if any, permitting defeasance or covenant defeasance with respect to
the Debt Securities of any Series.
Applicable Law
The Debt Securities and the Indenture will be governed by, and construed in
accordance with, the laws of the State of New York.
Concerning the Trustee
The Trustee may provide various commercial banking services to the Company
from time to time.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise).
Offers to purchase Debt Securities may be solicited by agents designated by
the Company from time to time. Any such agent involved in the offer or sale of
the Offered Securities will be named, and any commissions payable by the Company
to such agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed to
be an underwriter, as the term is defined in the Securities Act, of the Debt
Securities so offered and sold. Agents may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engaged in transactions with or perform services for the Company
in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transactions, including
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
Offered Securities. The underwriters may be entitled under the relevant
underwriting agreement to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and such
underwriters or their affiliates may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
If a dealer is utilized in the sale of Offered Securities, the Company will
sell such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be determined by
such
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dealer at the time of resale. Dealers may be entitled, under agreements which
may be entered into with the Company, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and such
dealers or their affiliates may be customers of, extend credit to or engage in
transactions with, or perform services for the Company in the ordinary course of
business. The name of any dealer and the terms of the transactions will be set
forth in the Prospectus Supplement relating thereto.
Offers to purchase Debt Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others. The terms of any such sales, including the terms of any bidding or
auction process, if utilized, will be described in the Prospectus Supplement
relating thereto.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered are set forth in the Prospectus Supplement.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Debt Securities
offered hereby will be passed upon for the Company by Stroock & Stroock & Lavan
of New York, New York. Certain legal matters in connection with the Debt
Securities offered hereby will be passed upon for the underwriters or agents, if
any, named in the Prospectus Supplement, by Andrews & Kurth L.L.P. of New York,
New York.
EXPERTS
The consolidated balance sheets of Tosco as of December 31, 1994 and 1993,
and the consolidated statements of income, common shareholders' equity (deficit)
and cash flows, and the financial statement schedules, for each of the three
years in the period ended December 31, 1994, incorporated by reference in this
Prospectus, have been incorporated herein in reliance on the report, which
includes an explanatory paragraph for changes in accounting for turnarounds,
income taxes and postretirement benefits other than pensions, of Coopers &
Lybrand L.L.P., independent accountants, given on the authority of that firm as
experts in accounting and auditing.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following sets forth the estimated expenses in connection with the
issuance and distribution of the Registrant's securities being registered
hereby, other than underwriting discounts and commissions, all of which will be
borne by the Registrant:
Securities and Exchange Commission registration fee ......... $ 86,208
Printing and engraving expenses ............................. 75,000
Legal fees and expenses ..................................... 40,000
Accounting fees and expenses ................................ 25,000
Blue Sky fees and expenses .................................. 10,000
Trustee's Fees .............................................. 10,000
Miscellaneous expenses ...................................... 3,792
--------
Total .................................................... $250,000
========
Item 15. Indemnification of Directors and Officers.
The Restated Articles of Incorporation of the Registrant provide that the
Registrant shall, to the fullest extent provided by the Nevada General
Corporation Law (the "Nevada GCL"), indemnify any and all persons whom it shall
have the power to indemnify under the Nevada GCL from and against any and all of
the expenses, liabilities or other matters referred to in or covered by the
Nevada GCL. The indemnification provided for in the Registrant's Restated
Articles of Incorporation shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any By-Law, agreement, vote of
stockholders or disinterested Directors, statute, rule or by common law or
otherwise.
The By-Laws of the Registrant also provide certain indemnification rights
to the Directors and officers of the Registrant.
The Registrant continues to maintain Directors and officers liability
insurance policies. The Registrant presently carries $14 million of such
coverage under a policy maintained with a wholly-owned subsidiary of the
Registrant engaged in the insurance business in Bermuda. In addition, the
Registrant carries $50,000,000 of Directors and officers liability coverage
under policies maintained with private unaffiliated insurance carriers. The
insurance subsidiary has deposited in trust the insurance premiums received by
it from the Registrant which will be used to pay losses which are covered by the
insurance policy issued by such subsidiary.
The Restated Articles of Incorporation of the Registrant include a
provision which eliminates the liability of Directors and officers to the
Registrant or its stockholders for damages for breaches of their fiduciary duty,
except for liability (i) for acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law; or (ii) for the payment of
dividends in violation of the provisions of the Nevada GCL which provide that
directors who, willfully or with gross negligence, permit the payment of a
dividend or the making of a distribution other than as permitted by the Nevada
GCL are jointly and severally liable for the lesser of the amount of the
dividend or the loss sustained by reason of the dividend or other distribution
to stockholders.
Under Nevada law, absent the foregoing provision, Directors and officers
would be liable for negligence or misconduct in the performance of their duties
to the Registrant. The provision absolves Directors and officers of liability
for negligence, including gross negligence, in the performance of their duties.
They will remain liable for acts or omissions which involve intentional
misconduct, fraud, a knowing violation of law or a violation of the provision
referred to above concerning payment of dividends. The provision has no effect
on the availability of equitable remedies such as injunction or rescission upon
breach of such duty. In addition, the Registrant understands that the Commission
takes the position that the provision will not affect the liability of such
persons under the federal securities laws. The Commission's position appears to
be that (1) the Nevada law authorizing this provision by its terms only permits
the elimination or limitation for breach of fiduciary duty as a director or
officer, which is a state law liability
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and not one imposed by the federal securities laws, and (2) the federal
securities laws preempt attempts by the states to limit liability for violations
of such laws. However, these issues have not been litigated and are unresolved
at the present time. The Nevada law authorizing this provision does not state
whether charter amendments adopted pursuant thereto will apply prospectively
only or whether they will also apply to acts or omissions which are alleged to
have occurred prior to their adoption and the Nevada courts have not addressed
such issue. In the event that such amendments are determined by the Nevada
courts to apply retroactively, the Registrant intends the provision to have such
retroactive application.
Registrant has entered into indemnification agreements with its Directors
which provide them with certain indemnification rights.
Reference is made to the Standard Provisions of the Underwriting Agreement,
included as Exhibit 1.1 hereto, which provides certain indemnification rights to
Directors and officers of the Registrant.
Item 16. Exhibits.
1.1 -- Form of Standard Provisions of the Underwriting Agreement.
4.1 -- Form of Indenture between Registrant and the First National Bank of
Boston, as Trustee, relating to Debt Securities (including Form of Debt
Security).
5.1 -- Opinion of Stroock & Stroock & Lavan as to the legality of the Debt
Securities.
12.1 -- Statement regarding computation of ratio of earnings to fixed charges.
23.1 -- Consent of Stroock & Stroock & Lavan (included in Exhibit 5.1).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24.1 -- Power of attorney (included on signature page of this Registration
Statement).
25.1 -- Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939 on Form T-1 of the First National Bank of Boston. Such statement
is bound separately from the other exhibits to this Registration
Statement.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
1993 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the 1933 Act, and
relating to the securities offered at competitive bidding, as contained in the
Registration Statement, together with any supplements thereto, and (2) to file
an amendment to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the Registrant
after the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by the
Registrant and no reoffering of such securities by the purchasers is proposed to
be made.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended
(the "Act"), in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on May 17, 1995.
TOSCO CORPORATION
By: /s/ THOMAS D. O'MALLEY
-----------------------------------
Thomas D. O'Malley
Chairman of the Board of Directors
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas D. O'Malley, Jefferson F. Allen and Wilkes
McClave III, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) of and supplements to this Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto such attorneys-in-fact and agents and each of them full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, to all intents and purposes and as fully as they
might or could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ THOMAS D. O'MALLEY Chairman of the Board of
- -------------------------------- Directors and Chief
Thomas D. O'Malley Executive Officer May 17, 1995
/s/ JEFFERSON F. ALLEN Principal Financial Officer
- -------------------------------- and Director May 17, 1995
Jefferson F. Allen
/s/ ROBERT I. SANTO Principal Accounting Officer May 17, 1995
- --------------------------------
Robert I. Santo
/s/ JOSEPH B. CARR Director May 17, 1995
- --------------------------------
Joseph B. Carr
/s/ HOUSTON I. FLOURNOY Director May 17, 1995
- --------------------------------
Houston I. Flournoy
/s/ CLARENCE G. FRAME Director May 17, 1995
- --------------------------------
Clarence G. Frame
/s/ EDMUND A. HAJIM Director May 17, 1995
- --------------------------------
Edmund A. Hajim
/s/ JOSEPH P. INGRASSIA Director May 17, 1995
- --------------------------------
Joseph P. Ingrassia
/s/ CHARLES J. LUELLEN Director May 17, 1995
- --------------------------------
Charles J. Luellen
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
1.1 -- Form of Standard Provisions of the Underwriting Agreement.
4.1 -- Form of Indenture between Registrant and the First National Bank of
Boston, as Trustee, relating to Debt Securities (including Form of Debt
Security).
5.1 -- Opinion of Stroock & Stroock & Lavan as to the legality of the Debt
Securities.
12.1 -- Statement regarding computation of ratio of earnings to fixed charges.
23.1 -- Consent of Stroock & Stroock & Lavan (included in Exhibit 5.1).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24.1 -- Power of attorney (included on signature page of this Registration
Statement).
25.1 -- Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939 on Form T-1 of the First National Bank of Boston. Such statement
is bound separately from the other exhibits to this Registration
Statement.
Draft dated May 16, 1995
TOSCO CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
_________, 1995
From time to time, TOSCO CORPORATION, a Nevada corporation (the "Company"),
may enter into one or more underwriting agreements that provide for the sale of
designated securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus" means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order by
the Commission or any state securities authority suspending the effectiveness of
the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the best knowledge of the Company, threatened by the
Commission or any state securities authority.
<PAGE>
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, and none of such
documents contained or will contain an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) each part of the
Registration Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 1(b) do
not apply (A) to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Manager expressly for use
therein or (B) to that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Nevada, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by
the Company, and constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except that
enforceability hereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors' rights generally and by
general equity principles.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is a
valid and
2
<PAGE>
binding agreement of the Company, enforceable in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(h) (A) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities will not contravene (1) any provision of
applicable law or the restated Articles of Incorporation or by-laws of the
Company or (2) any agreement, contract, bond, indenture or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or (3) any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and (B) no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Offered Securities, except such as may be required under the
Securities Act, by the securities, or Blue Sky, laws of the various
jurisdictions in connection with the offer and sale of the Offered Securities,
or by the Trust Indenture Act. The execution and delivery by the Company of, and
the performance by the Company of its obligations under this Agreement will not
result in the imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries, pursuant to the terms of any
agreement, indenture or instrument to which the Company or any of its
subsidiaries is party or by which any of them is bound.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement). Since the date of the latest audited financial
statements included in the Prospectus, there has not been any material change in
the capital stock or long-term debt of the Company or any of its subsidiaries,
except as disclosed in the Prospectus.
(j) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that might result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business, operations
or prospects of the Company and its subsidiaries, taken as a whole, that affects
the transactions contemplated by this
3
<PAGE>
Agreement or that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(l) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties.
(m) Neither the Company nor any of its subsidiaries is (i) an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, or (ii) subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or the Interstate Commerce Act, in each case as amended and in effect
from time to time, or is subject to any law, rule, regulation, order, judgment
or decree which regulates the offering or sale of the Offered Securities (other
than the Securities Act, the Exchange Act, the "Blue Sky" or state
securities laws and the Trust Indenture Act), including, without limitation, any
law, rule, regulation, order, judgment or decree relating to common or contract
carriers or to the sale of electricity, gas, steam, water or other public
utility services.
(n) Subsequent to the respective dates as of which information is given in
the Prospectus, and except as may otherwise be described in the Prospectus,
neither the Company nor any of its subsidiaries has (i) entered into any
transaction not in the ordinary course of business, or (ii) declared or paid any
dividend on its capital stock other than regular quarterly dividends on the
Company's Common Stock.
(o) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits
(collectively, "Permits") of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocations or
modification of any such Permits which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse effect on the Company and its subsidiaries, taken as a whole,
except as described in or contemplated by the Prospectus.
(p) Neither the Company nor any of its subsidiaries is now or is
reasonably expected by the Company or its subsidiaries to be in violation or
breach of, or in default with respect to, any provision of any material
contract, agreement, instrument, lease,
4
<PAGE>
or license to which the Company or any subsidiary is a party, the effect of
which would materially adversely affect the condition, financial or otherwise,
earnings, business, operations or prospects of the Company and its subsidiaries,
taken as a whole. Each such contract, agreement, instrument, lease or license
(i) is in full force, (ii) is the legal, valid, and binding obligation of the
Company or its subsidiaries and is enforceable as to the Company or its
subsidiaries, as the case may be, in accordance with its terms and (iii) to the
Company's knowledge, is the legal, valid and binding obligation of the other
parties thereto and is enforceable as to each of them in accordance with its
terms, except that enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights generally and rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. Neither the Company nor any of its subsidiaries is, or with
giving of notice or lapse of time or both would be, in violation of its
Corporate charter or by-laws.
(q) The Company and its subsidiaries have title in fee simple to all
real property and good and marketable title to all personal property owned by
them which is material to the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in or contemplated by the
Prospectus. Each of the Company, and its subsidiaries enjoys peaceful and
undisturbed possession under all leases and licenses under which it is
operating.
(r) (A) The Company and its subsidiaries are (i) in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals and filed all notices required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance with all
terms and conditions of any such permit, license, notice or approval and any
remedial obligations under any Environmental Law, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses, approvals or obligations or to file such notices
would not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(s) Except as set forth in the Registration Statement and Prospectus,
or incorporated by reference, (i) the Company has taken all steps necessary to
determine and has determined that no Hazardous Materials have been disposed of
or otherwise released and there has been no threatened release of any Hazardous
Material on or to the Company's property; and (ii) the Company has no present or
contingent liability in connection with any release or threatened release of any
Hazardous Material into the environment, whether on or off its property the
violation of any of which might have a materially adverse effect on the
condition, financial or otherwise, or in the earnings, business, operations or
prospects of the
5
<PAGE>
Company and its subsidiaries, taken as a whole. The term "Hazardous Material"
means any oil (including petroleum products, crude oil and any fraction
thereof), chemical, contaminant, pollutant, solid or hazardous waste, Hazardous
Substance (as defined in Section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act and regulations thereunder), or other
material that is toxic or harmful to human health or the environment or the use,
treatment, sale, discharge or disposal of which is regulated by a local, state
or federal governmental authority charged with protection of health, safety or
the environment.
(t) The Company and each of its subsidiaries is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and the
regulations and published interpretations thereunder; no "reportable event" (as
defined in ERISA and the regulations and published interpretations thereunder)
has occurred with respect to any "pension plan" (as defined in ERISA and the
regulations and published interpretations thereunder) established or maintained
by the Company and its subsidiaries. Neither the Company nor any of its
subsidiaries have incurred and do not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended (the "Code"); and each "pension plan" established or maintained by the
Company or any of its subsidiaries that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and has
received a favorable determination letter as to its qualification and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
(u) No tax deficiency has been incurred, nor do the Company or any of
its subsidiaries have any knowledge of any tax deficiency which if determined
adversely to the Company or any of its subsidiaries, might have a material
adverse effect on the condition, financial or otherwise, or in the earnings,
business, operations or prospects of the Company and its subsidiaries, taken as
a whole.
(v) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(w) Neither the Company nor any of its subsidiaries, nor to the
knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries,
has used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
6
<PAGE>
(x) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as otherwise indicated therein.
(y) Coopers & Lybrand L.L.P., who have certified certain financial
statements of the Company and whose report is included in the Prospectus or is
incorporated by reference therein, are independent public accountants within the
meaning of the Securities Act and the rules and regulations thereunder.
(z) No labor problem exists or, to the knowledge of the Company,
is imminent with the employees of the Company or any of its subsidiaries which
would have a material adverse effect on the condition, financial or otherwise,
or in the earnings, business, operations or prospects of the Company and its
subsidiaries, taken as a whole.
(aa) Except as set forth in the Prospectus, neither the Company nor
any of its subsidiaries has violated any applicable federal or state law
relating to discrimination in hiring, promotion, or pay of employees, nor any
applicable federal or state wages and hours law, the violation of any of which
might have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(ab) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or with
any person or affiliate located in Cuba.
2. Terms of Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Offered Securities are set forth in the Prospectus.
3. Payment and Delivery. Except as otherwise provided, payment for the
Offered Securities shall be made by wire transfer in immediately available funds
at the time and place set forth in the Underwriting Agreement, upon delivery to
the Manager for the respective accounts of the several Underwriters of the
Offered Securities registered in such names and in such denominations as the
Manager shall request in writing not less than two full business days prior to
the date of delivery, with any transfer taxes payable in connection with the
transfer of the Offered Securities to the Underwriters duly paid.
4. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
7
<PAGE>
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (a)(ii) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(c) The Underwriters shall have received on the Closing Date an
opinion of Stroock & Stroock & Lavan, outside counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Nevada, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in the States of California, New Jersey,
Connecticut, Washington and Arizona and any other jurisdiction in which the
Company has at least $50 million in assets;
(ii) each of Bayway Refining Company ("Bayway") and each other
subsidiary (if any) of the Company that has at least $100 million in assets
(each, a "Material Subsidiary") has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which such subsidiary has at least $50 million in assets;
all of the outstanding shares of capital stock of Bayway and each other
Material Subsidiary (if any) have been duly authorized
8
<PAGE>
and are validly issued, fully paid and non-assessable, and are owned
directly or indirectly by the Company free and clear of all liens,
encumbrances, equities or claims, except for pledges made under certain of
the Company's and such subsidiaries' credit agreements and as otherwise may
be described in the Prospectus;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except to the extent that rights to indemnity or contribution hereunder may
be limited by federal or state securities laws or the public policy
underlying such laws;
(iv) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability;
(v) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally and (b) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(vi) (A) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities, will not contravene (1) any provision
of applicable law or the restated Articles of Incorporation or by-laws of
the Company or, (2) to the best of such counsel's knowledge, any agreement,
contract, bond, indenture or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, (3) to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any subsidiary, and (B) no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture, or the Offered
Securities, except such as may be required under the Securities Act, by the
securities, or Blue Sky, laws of the
9
<PAGE>
various states in connection with the offer and sale of the Offered
Securities or by the Trust Indenture Act;
(vii) neither the Company nor Bayway, nor any of the Company's
other Material Subsidiaries is in violation or breach of, or in default
with respect to any term of its articles of incorporation (or other charter
document) or by-laws;
(viii) the statements (A) in the Prospectus under the captions
"Description of Debt Securities," "Plan of Distribution" and "_______," and
(B) in the Registration Statement under Item 15, in each case insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(ix) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that (A) affects the
transactions, contemplated by this Agreement, (B) if determined adversely
to the Company or one of its subsidiaries might have a material adverse
effect on the condition, financial or otherwise, or in the earnings,
business, operations and prospects of the Company and its subsidiaries,
taken as a whole, or (C) are required to be described in the Registration
Statement or the Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that
are not described, filed or incorporated as required;
(x) neither the Company nor any of its subsidiaries is (1) an
"investment company" or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as
amended, or (2) subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act of
1940 or the Interstate Commerce Act, in each case as amended and in effect
from time to time, or is subject to any law, rule, regulation, order,
judgment or decree which regulates the offering or sale of the Offered
Securities (other than the Securities Act, the Exchange Act, and the "Blue
Sky," or state securities laws), including, without limitation, any law,
rule, regulation, order, judgment or decree relating to common or contract
carriers or to the sale of electricity, gas, steam, water or other public
utility services;
(xi) (1) each document, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus
(except for financial statements and schedules included therein as to which
such counsel need not express any opinion) complied when so filed as to
form in all material respects with the requirements of the Exchange Act and
10
<PAGE>
the applicable rules and regulations of the Commission thereunder, and (2)
the Registration Statement and Prospectus (except for financial statements
and schedules included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with the Securities
Act and the applicable rules and regulations of the Commission thereunder.
In addition, such counsel shall state that such counsel participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and the Prospectus and any amendment thereof or supplement thereto,
and related matters were discussed and, although such counsel has not
independently verified and is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except as otherwise
indicated above), on the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers and representatives of the Company),
no facts have come to the attention of such counsel which lead them to believe
that either the Registration Statement and the Prospectus or any amendment
thereto, at the time the Registration Statement and the Prospectus or amendment
became effective, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein not misleading or
the Registration Statement and the Prospectus and any amendment or supplement
thereto as of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and other financial and statistical data included in
the Registration Statement and the Prospectus and the Form T-1).
The opinion of Stroock & Stroock & Lavan described in paragraph (c) above
shall be rendered to the Underwriters at the request of the Company and shall so
state therein. In rendering such opinion, such counsel may state that their
opinion is limited to matters governed by the federal laws of the United States
of America, the laws of the State of New York, the corporate laws of the State
of Nevada and the corporate laws of the State of Delaware.
(d) The Underwriters shall have received on the Closing Date an
opinion of Andrews & Kurth L.L.P., special counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in subparagraph (iii), (iv),
(v), (vi), (viii) (but only as to the statements in the Prospectus under
"Description of Debt Securities" and "Plan of Distribution" and the paragraph
immediately following subparagraph (x) of paragraph (c) above. In rendering such
opinion, such counsel may state that their opinion is limited to matters
governed by the federal laws of the United States of America, the laws of the
State of New York and the corporate laws of the State of Delaware.
(e) The Underwriters shall have received, on the Closing Date, a
letter dated the Closing Date in form and substance satisfactory to the
Underwriters, from Coopers & Lybrand L.L.P., independent public accountants,
containing statements and
11
<PAGE>
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
(f) Any certificate signed by an officer of the Company and delivered,
pursuant to this Agreement or in connection with the payment of the purchase
price and delivery of the Debt Securities to the Underwriters or the
Underwriter's counsel shall be deemed a representation and warranty by the
Company to each of you as to the matters covered thereby.
5. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants with each Underwriter
as follows:
(a) To furnish the Manager, without charge, ___ signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to maintain such qualification for as long as the Manager
shall reasonably request, to comply with such laws as to permit the continuance
of sales and dealings in such jurisdictions for as long as may be necessary to
complete the distribution of the Offered
12
<PAGE>
Securities and to pay all expenses (including fees and disbursements of counsel)
in connection therewith.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a twelve
month period beginning on the first day of the first full fiscal quarter after
the date of this Agreement, which earning statement shall satisfy the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available not later
than 90 days after the close of the period covered thereby and in all other
cases shall be made available not later than 45 days after the close of the
period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities (other than the Offered
Securities), without the prior written consent of the Manager.
(g) To use the proceeds from the sale of the Offered Securities in the
manner described in the Prospectus under the caption "Use of Proceeds."
(h) Whether or not the transactions contemplated by this Agreement are
consummated, to pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery of the Offered Securities;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Offered Securities
under state securities or Blue Sky laws in accordance with the provisions of
Section 6(d), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda; (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of copies of
the Registration Statement and all amendments thereto and of any preliminary
prospectus and the Prospectus and any amendments or supplements thereto; (vi)
the printing and delivery to the Underwriters of copies of any Blue Sky or Legal
Investment Memoranda; (vii) any fees charged by rating agencies for the rating
of the Offered Securities; (viii) the filing fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities Dealers,
Inc. made in connection with the Offered Securities; (ix) any expenses incurred
by the Company in connection with a "road show" presentation to potential
investors and (x) all document production charges and expenses of counsel to the
Underwriters incurred in connection with the preparation of the Indenture.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any
13
<PAGE>
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 6, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any
14
<PAGE>
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 6. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount
15
<PAGE>
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
7. Termination. This Agreement shall be subject to termination by notice
given by the Manager to the Company, if (a) after the execution and delivery of
the Underwriting Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Manager, is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event,
singly or together with any other such event, makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Underwriters' Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
amount of Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate amount of the Underwriters' Securities to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the amount of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such amount
of Underwriters' Securities without the written consent of such Underwriter. If,
on the Closing
16
<PAGE>
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate amount of Underwriters' Securities
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Underwriters' Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Underwriters' Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
9. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
17
Draft 5/17/95
================================================================================
TOSCO CORPORATION
AND
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
------------------------
DEBT SECURITIES
------------------------
INDENTURE
DATED AS OF MAY __, 1995
================================================================================
<PAGE>
TOSCO CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of May __ , 1995
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1)................................................. 6.10
(a)(2)................................................. 6.10
(a)(3)................................................. Not Applicable
(a)(4)................................................. Not Applicable
(a)(5)................................................. 6.10
(b).................................................... 6.8, 6.10
311(a).................................................... 6.11
(b).................................................... 6.11
312(a).................................................... 4.1 and 4.2
(b).................................................... 4.2
(c).................................................... 4.2
313(a)(1)-(5) & (7)-(8)................................... 6.6
(a)(6)................................................. Not Applicable
(b)(1)................................................. Not Applicable
(b)(2)................................................. 6.6
(c).................................................... 6.6
(d).................................................... 6.6
314(a)(1)-(3)............................................. 4.3
(a)(4)................................................. 3.4
(b).................................................... Not Applicable
(c)(1)................................................. 11.5
(c)(2)................................................. 11.5
(c)(3)................................................. Not Applicable
(d).................................................... Not Applicable
(e).................................................... 11.5
(f).................................................... Not Applicable
315(a).................................................... 6.1
(b).................................................... 6.5
(c).................................................... 6.1
(d).................................................... 6.1
(d)(1)................................................. 6.1
(d)(2)................................................. 6.1
(d)(3)................................................. 6.1
(e).................................................... 5.10
316(a).................................................... 7.4
(a)(1)(A).............................................. 5.8
(a)(1)(B).............................................. 5.1, 5.9
(a)(2)................................................. Not Applicable
(b).................................................... 5.6
(c).................................................... 7.1
317(a)(1)................................................. 5.2
(a)(2)................................................. 5.2
(b).................................................... 3.3
318(a).................................................... 11.7
- -------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined............................................ 1
Attributable Debt ........................................................... 1
Bank Credit Facility ........................................................ 2
Board of Directors .......................................................... 2
Business Day ................................................................ 2
Capital Stock ............................................................... 2
Commission .................................................................. 2
Company ..................................................................... 2
Company Notice .............................................................. 2
Consolidated Net Tangible Assets............................................. 2
Corporate Trust Office....................................................... 3
covenant defeasance ......................................................... 3
Debt ........................................................................ 3
defaulted interest .......................................................... 3
defeasance .................................................................. 3
Depositary .................................................................. 3
Depositary Security ......................................................... 3
Discount Security ........................................................... 3
Dollar ...................................................................... 3
Event of Default ............................................................ 3
Funded Debt ................................................................. 3
Global Security ............................................................. 3
Government Obligations....................................................... 3
Holder ...................................................................... 4
incur ....................................................................... 4
Indebtedness ................................................................ 4
Indenture ................................................................... 4
Lien ........................................................................ 4
Maturity .................................................................... 4
Officers' Certificate........................................................ 4
Opinion of Counsel .......................................................... 4
original issue date ......................................................... 5
Outstanding ................................................................. 5
Paying Agent ................................................................ 5
Persons ..................................................................... 5
Place of Payment ............................................................ 5
Preferred Stock ............................................................. 5
principal ................................................................... 5
Principal Property .......................................................... 6
record date ................................................................. 6
i
<PAGE>
Responsible Officer ......................................................... 6
Sale and Leaseback Transaction............................................... 6
Security .................................................................... 6
Security Register ........................................................... 6
Series ...................................................................... 6
Stated Maturity ............................................................. 6
Subsidiary .................................................................. 6
Trust Indenture Act ......................................................... 7
Trustee ..................................................................... 7
United States of America..................................................... 7
U.S. Person ................................................................. 7
vice president .............................................................. 7
ARTICLE II
SECURITIES
SECTION 2.1 Forms Generally................................................. 7
SECTION 2.2 Form of Trustee's Certificate of Authentication................. 7
SECTION 2.3 Amount Unlimited; Issuable in Series............................ 8
SECTION 2.4 Authentication and Delivery of Securities...................... 10
SECTION 2.5 Execution of Securities........................................ 11
SECTION 2.6 Certificate of Authentication.................................. 12
SECTION 2.7 Denomination and Date of Securities; Payments of Interest...... 12
SECTION 2.8 Registration, Transfer and Exchange............................ 13
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...... 16
SECTION 2.10 Cancellation of Securities; Destruction Thereof................ 17
SECTION 2.11 Temporary Securities........................................... 17
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest.............................. 18
SECTION 3.2 Offices for Payment, etc....................................... 18
SECTION 3.3 Paying Agents.................................................. 19
SECTION 3.4 Written Statement to Trustee................................... 20
SECTION 3.5 Limitation on Liens............................................ 20
SECTION 3.6 Limitation on Sale and Leaseback Transactions.................. 20
SECTION 3.7 Limitation on Subsidiary Funded Debt and Preferred Stock....... 21
SECTION 3.8 Waiver of Certain Covenants.................................... 21
ii
<PAGE>
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders................................... 22
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.......... 22
SECTION 4.3 Reports by the Company......................................... 23
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default........................................................ 24
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove Debt.. 26
SECTION 5.3 Application of Proceeds........................................ 27
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings............ 28
SECTION 5.5 Limitations on Suits by Securityholders........................ 28
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits.......................................................... 29
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default..................................................... 29
SECTION 5.8 Control by Securityholders..................................... 29
SECTION 5.9 Waiver of Past Defaults........................................ 29
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs... 29
SECTION 5.11 Suits for Enforcement.......................................... 30
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of the Trustee.......................................... 30
SECTION 6.2 Rights of Trustee.............................................. 31
SECTION 6.3 Individual Rights of Trustee................................... 31
SECTION 6.4 Trustee's Disclaimer........................................... 31
SECTION 6.5 Notice of Defaults............................................. 31
SECTION 6.6 Reports by Trustee to Holders.................................. 32
SECTION 6.7 Compensation and Indemnity..................................... 32
SECTION 6.8 Replacement of Trustee......................................... 32
SECTION 6.9 Successor Trustee by Merger.................................... 33
SECTION 6.10 Eligibility; Disqualification.................................. 33
SECTION 6.11 Preferential Collection of Claims against Company.............. 33
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.................... 34
SECTION 7.2 Proof of Execution of Instruments.............................. 34
SECTION 7.3 Holders to be Treated as Owners................................ 34
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SECTION 7.4 Securities Owned by Company Deemed Not Outstanding............ 34
SECTION 7.5 Right of Revocation of Action Taken........................... 35
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.2 Supplemental Indentures With Consent of Securityholders....... 36
SECTION 8.3 Effect of Supplemental Indenture.............................. 37
SECTION 8.4 Documents to Be Given to Trustee.............................. 37
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.. 37
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms............... 38
SECTION 9.2 Successor Corporation Substituted............................. 38
SECTION 9.3 Opinion of Counsel to Trustee................................. 38
ARTICLE X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture....................... 39
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities.................................................... 41
SECTION 10.3 Repayment of Moneys Held by Paying Agent...................... 41
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent... 41
SECTION 10.5 Reinstatement of Company's Obligations........................ 42
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability...................... 42
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders............................................... 42
SECTION 11.3 Successors and Assigns of Company Bound by Indenture.......... 43
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders... 43
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein....................................... 43
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays............... 44
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act........................................................... 44
SECTION 11.8 New York Law to Govern........................................ 44
SECTION 11.9 Counterparts.................................................. 44
SECTION 11.10 Effect of Headings; Gender.................................... 44
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ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article....................................... 45
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions.................................................... 45
SECTION 12.3 Payment of Securities Called for Redemption.................... 46
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption................................................. 47
SECTION 12.5 Mandatory and Optional Sinking Funds........................... 47
SECTION 12.6 Repayment at the Option of the Holders......................... 49
v
<PAGE>
THIS INDENTURE, dated as of May __, 1995 between TOSCO CORPORATION, a
Nevada corporation (the "Company"), and THE FIRST NATIONAL BANK OF BOSTON, a
national banking association organized under the laws of the United States of
America (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
Holders thereof, it is mutually agreed for the equal and proportionate benefit
of the respective Holders from time to time of the Securities or of a Series
thereof as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended, or
the definitions of which in the Securities Act of 1933, as amended, are referred
to in the Trust Indenture Act of 1939, as amended, including terms defined
therein by reference to the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in the Trust Indenture Act of
1939, as amended, and in the Securities Act of 1933, as amended, as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole, as supplemented and amended from time to time, and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Attributable Debt" when used in connection with a Sale and Leaseback
Transaction involving a Principal Property shall mean, at the time of
determination, the present value of the total net amount of rent required to be
paid under such lease during the remaining term thereof (including any renewal
term or period for which such lease has been extended), discounted at the rate
of interest set forth or implicit in the terms of such lease or, if not
practicable to determine such rate, the weighted average interest rate per annum
borne by the Debt Securities of each series outstanding pursuant to this
Indenture compounded semi-annually. For purposes of the foregoing definition,
rent shall not include amounts required to be paid by the lessee on account of
insurance, taxes, assessments, utility, operating and labor costs and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
<PAGE>
"Bank Credit Facility" means the bank facility provided for under the
Second Amended and Restated Credit Agreement, dated as of April 7, 1995, as
amended, among the Company, certain of its subsidiaries and the banks that are
or become parties from time to time thereto, as it may be amended, supplemented
or otherwise modified from time to time, and any successor or replacement bank
facility thereto, provided that the aggregate amount of borrowing thereunder
does not exceed $450.0 million.
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee of that Board.
"Business Day" means, except as may otherwise be provided in the form of
Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, units representing interests, participations, rights in or other
equivalents (however designated) of such Person's capital stock, including, with
respect to partnerships, partnership interests (whether general or limited) and
any other interest or participation that confers upon a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
such partnership, and any rights (other than debt securities convertible into
capital stock), warrants or options exchangeable for or convertible into such
capital stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to its under
the Trust Indenture Act, then the body performing such duties on such date.
"Company" means Tosco Corporation, a Nevada corporation, until a successor
corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Notice" means the confirmation of the Company signed by an
officer, transmitted to the Trustee of the terms of the issuance of any
Securities.
"Consolidated Net Tangible Assets" means the total of all the assets
appearing on the consolidated balance sheet of the Company and its Subsidiaries,
less the following: (a) liabilities, (b) intangible assets, including, but
without limitation, such items as goodwill, trademarks, trade names, patents and
unamortized debt discount and expense carried as an asset on said balance sheet,
and (c) appropriate adjustment on account of minority interests of other persons
holding stock in any Subsidiary. Consolidated Net Tangible Assets shall be
determined in accordance with generally accepted accounting principles applied
on a consistent basis and shall be determined by reference to the most recent
publicly available quarterly or annual, as the case may be, consolidated balance
sheet of the Company.
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"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at .
----------------------------------------------------------
"covenant defeasance" has the meaning specified in Section 10.1(B)(iii).
"Debt" of a Person means, all indebtedness of such Person which is for
money borrowed.
"defaulted interest" has the meaning specified in Section 2.7.
"defeasance" has the meaning specified in Section 10.1(B)(ii).
"Depositary" means, with respect to the Securities of any Series issuable
or issued in the form of one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 2.3 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such person,
"Depositary" as used with respect to the Securities of any such Series shall
mean the Depositary with respect to the Global Securities of that Series.
"Depositary Security" means, with respect to any Series of Securities, a
Security executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance
with this Indenture and pursuant to a resolution of the Board of Directors as
contemplated by Section 2.3, which (i) shall be registered as to principal and
interest in the name of the Depositary or its nominee and (ii) shall represent,
and shall be denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such Series.
"Discount Security" means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.1.
"Dollar" means the coin or currency of the United States of America which
as of the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" has the meaning specified in Section 5.1.
"Funded Debt" means Debt which by its terms matures at, or can be extended
or renewed at the option of the obligor to, a date more than twelve months after
the date of the Debt's creation, including, but not limited to, outstanding
revolving credit loans.
"Global Security" means a Security evidencing all or a part of a Series of
Registered Securities, issued to the Depositary for such Series in accordance
with Section 2.4, and bearing the legend prescribed in Section 2.4.
"Government Obligations" means, unless otherwise specified pursuant to
Section 2.3, securities which are (i) direct obligations of the government which
issued the currency in which the Securities of such Series are denominated for
the payment of which its full faith and credit is pledged or (ii) obligations of
3
<PAGE>
a Person controlled or supervised by, or acting as an agency or instrumentality
of, the United States government, the payment of which obligations is
unconditionally guaranteed by such government, and which, in either case, are
full faith and credit obligations of such government, and which are not callable
or redeemable at the option of the issuer thereof prior to their stated
maturity.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean the person in whose name such Security is registered in the Security
Register.
"incur" means to issue, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to, or otherwise become responsible for
the payment of, any Debt.
"Indebtedness" of a Person means, without duplication, (a) all indebtedness
of such Person which is (i) for money borrowed or (ii) evidenced by a bond,
debenture, note or similar instrument or letter of credit given in connection
with the acquisition of any businesses, properties or assets of any kind other
than trade accounts payable or accrued liabilities arising in the ordinary
course of business; (b) obligations of such Person as lessee under leases
required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles and leases of property or assets made as part of
any sale and lease-back transaction to which such Person is a party; (c)
amendments, renewals, extensions, modifications, refundings and refinancings of
any indebtedness or obligations referred to in clause (a) or (b); and (d)
guarantees by such Person of any indebtedness or obligations of the type
referred to in clause (a), (b) or (c).
"Indenture" means this instrument as originally executed and delivered or
as it may from time to time be amended or supplemented as herein provided, as so
amended or supplemented or both, and shall include the forms and terms of
particular Series of Securities established as contemplated by Section 2.3.
"Lien" means any mortgage or deed of trust, pledge, assignment, security
interest, lien, charge, or other encumbrance or preferential arrangement
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on behalf of the Company
by the chairman of the Board of Directors or the vice chairman or the president
or any vice president and by the treasurer, the controller, any assistant
treasurer, the secretary or any assistant secretary of the Company and delivered
to the Trustee. Each such certificate shall include the statements provided for
in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
an employee of or counsel to the Company, and who shall be reasonably acceptable
to the Trustee. Each Opinion of Counsel shall include the statements provided
for in Section 11.5, if and to the extent required hereby.
4
<PAGE>
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding" when used with reference to Securities, subject to the
provisions of Section 7.4, means, as of any particular time, all Securities
authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any Paying Agent (other than the Company) or shall
have been set aside, segregated and held in trust by the Company for the
Holders of such Securities (if the Company shall act as its own Paying
Agent), provided that if such Securities, or portions thereof, are to be
redeemed prior to the Maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice;
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Company is presented that
such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Company); and
(d) Securities as to which defeasance has been effected pursuant to
Section 10.1(B)
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.1.
"Paying Agent" means any Person (which may include the Company) authorized
by the Company to pay the principal of or interest, if any, on any Security on
behalf of the Company.
"Persons" or "person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any Series,
means the place or places where the principal of and interest, if any, on the
Securities of that Series are payable as specified pursuant to Section 3.2.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
5
<PAGE>
"Principal Property" means (i) any refining or processing plant (together
with any pipeline, terminal or other facility related to such refining or
processing plant and necessary for its economic operation) or corporate offices,
in any case owned or leased by the Company or any Subsidiary, or any interest of
the Company or any Subsidiary in such property (in each case including the real
estate related thereto) located within the United States of America and (ii) any
Capital Stock of any Subsidiary that owns, directly or indirectly, a Principal
Property of the type described in clause (i).
"record date" has the meaning specified in Section 2.7.
"Responsible Officer" when used with respect to the Trustee means any
officer within the corporate trust department (or any successor department) of
the Trustee including any vice president, assistant vice president, assistant
secretary, senior trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Corporate Trust Office
because of his or her knowledge of and familiarity with the particular subject.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than one year after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other similar amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" has the meaning specified in Section 2.8.
"Series" or "Series of Securities" means all Securities of a similar tenor
authorized by a particular resolution of the Board of Directors.
"Stated Maturity" when used with respect to any Security or any installment
or principal thereof or interest thereon, means the date on which the principal
of such Security or such installment of principal or interest is due and payable
in accordance with the terms thereof.
"Subsidiary" means any corporation, association, partnership or other
business entity of which more than 50% of the total voting power of the
outstanding Capital Stock (or other interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, general
partners, managers, managing members, managing partners or trustees thereof or,
if such persons are not elected, to vote on any matter that is submitted to the
vote of all persons holding ownership interests in such entity) is at the time
owned or controlled, directly or indirectly, by (i) the Company, (ii) the
Company and one or more Subsidiaries or (iii) one or more Subsidiaries.
6
<PAGE>
"Trust Indenture Act" or "TIA" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, as in force at
the date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof until a successor Trustee shall have become such pursuant to the
provision hereof, and thereafter, "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than once such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"United States of America" means the United States of America (including
the states and the District of Columbia), its territories, possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"U.S. Person" means a citizen or resident of the United States of America,
a corporation, partnership or other entity created or organized in or under the
laws of the United States of America or any political subdivision thereof or an
estate or trust the income of which is subject to United States of America
federal income taxation regardless of whether such income is from sources within
or without the United States of America or whether or not such income is
effectively connected with the conduct of a trade or business within the United
States of America.
"vice president" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president."
ARTICLE II
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series to be attached
thereto shall be substantially in such form (including temporary or definitive
global form) as shall be established by or pursuant to a resolution of the Board
of Directors or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture (the provisions of which shall be
appropriate to reflect the terms of the Series of Securities represented
thereby) and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be
required to comply with the law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities, as
evidenced by their execution of the Securities and Coupons.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
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This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
,
------------------------
as Trustee
By: ,
------------------------
Authorized Signatory
or
,
------------------------
as Trustee
By: ,
------------------------
as Authentication Agent
By: ,
------------------------
Authorized Signatory
SECTION 3.3 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more Series and the Securities of
each Series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant to
one or more resolutions of the Board of Directors and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any Series.
(a) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued
by the Company);
(b) any limit upon the aggregate principal amount of the Securities of
the Series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3);
(c) if other than 100% of their principal amount, the percentage of
their principal amount at which the Securities of the Series will be
offered for sale to the public;
(d) if other than Dollars, the coin or currency in which the
Securities of that Series are denominated;
(e) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(f) the rate or rates (which may be fixed or variable), or the method
or methods of determination thereof, at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom
interest is payable;
8
<PAGE>
(g) the place or places where the principal of, and interest, if any,
on Securities of the Series shall be payable (if other than as provided in
Section 3.2);
(h) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the Maturity pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(j) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the Series whether pursuant to any sinking fund or
analogous provisions or pursuant to other provisions set forth therein or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the Series shall be redeemed, purchased or repaid, in whole
or in part;
(k) if other than denominations of $1,000, and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(l) the form of the Securities, including such legends as required by
law or as the Company deems necessary or appropriate and the form of any
temporary global security which may be issued;
(m) if other than the coin or currency in which the Securities of that
Series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such Series shall be payable;
(n) if the principal of or interest on the Securities of such Series
are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are denominated,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(o) if the amount of payments of principal of and interest on the
Securities of the Series may be determined with reference to an index,
formula or method, the manner in which such amount shall be determined;
(p) whether, under what circumstances and in what amounts the Company
will pay additional amounts on the Securities of the Series held by a
person who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
additional amounts;
(q) if the Securities of such Series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such Series) only upon receipt of certain certificates
9
<PAGE>
or other documents or satisfaction of other conditions, the form and terms
of such certificates, documents or conditions;
(r) if other than the Trustee, any trustees, depositaries,
authenticating or Paying Agents, transfer agents or registrars or any other
agents with respect to the Securities of such Series;
(s) if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.1 hereof;
(t) whether the Securities of such Series are to be issuable in whole
or in part in the form of one or more Depositary Securities, and, in such
case, the Depositary for such Securities;
(u) the application, if any, or either or both of Section 10.1(B)(ii)
or 10.1(B)(iii) to the Securities of the Series;
(v) any other events of default or covenants with respect to the
Securities of such Series; and
(w) any other terms or conditions upon which the Securities of the
Series are to be issued (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one Series and Coupons, if any, appertaining thereto
shall be substantially identical except as to denomination and as may otherwise
be provided in or pursuant to such resolution of the Board of Directors or in
any such indenture supplemental hereto. All Securities of any one Series need
not be issued at the same time, and unless otherwise provided, a Series may be
reopened for issuances of additional Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any Series, having attached thereto appropriate Coupons,
if any, executed by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery such
Securities to or upon the written order of the Company, signed by both (a) the
chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) its treasurer or any
assistant treasurer, secretary or any assistant secretary without any further
action by the Company. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive and (subject to Section 6.1) shall be
fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(b) a supplemental indenture, if any;
(c) an Officers' Certificate setting forth the form and terms of the
Securities of such Series, as required pursuant to Sections 2.1 and 2.3,
respectively, and prepared in accordance with Section 11.5;
(d) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state that:
(i) the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental
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indenture as permitted by Sections 2.1 and 2.3 in conformity with the
provisions of this Indenture and in conformity with such resolution or
supplemental indenture, as the case may be,
(ii) such Securities, and Coupons, if any, have been duly
authorized, and, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable
principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
Notwithstanding the provisions of Section 2.3 and of the preceding
paragraph, if all Securities of a Series are not to be originally issued at one
time, it shall not be necessary to deliver the resolution of the Board of
Directors and/or Officers' Certificate otherwise required pursuant to Section
2.3 or the Officers' Certificate and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such Series if such documents are delivered at or prior to
the time of authentication upon original issuance of the first Security of such
Series to be issued. After the original issuance of the first Security of such
Series to be issued, any separate request by the Company that the Trustee
authenticate Securities of such Series for original issuance will be deemed to
be a certification by the Company that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee is advised by counsel in good faith
that the issuance of such Securities would expose the Trustee to personal
liability or is unlawful.
If the Company shall establish pursuant to Section 2.3 that the Securities
of a Series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with this
Section, authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such Series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Company by both (a) the chairman of its Board of Directors or its
president or any vice president and (b) its treasurer or any assistant treasurer
or its secretary or any assistant secretary, under its corporate seal which may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of such officers. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction
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of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. The execution of such
certificate by the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of the Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of the Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities of each Series shall be issuable as Securities in denominations as
shall be specified as contemplated by Section 2.3. In the absence of any such
specification with respect to the Securities of any Series, Securities shall be
issuable in denominations of $1,000 and any integral multiple thereof. The
Securities of each Series shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The Securities
of each Series shall bear interest, if any, from the date, and such interest
shall be payable on the dates, established as contemplated by Section 2.3.
Unless otherwise provided as contemplated by Section 2.3, interest on any
Security which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid to the person in whose name that Security
(or one or more predecessor Securities) is registered at the close of business
on the regular record date for the payment of such interest.
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The term "record date" as used with respect to any interest payment date
(except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Holder on the relevant record date by virtue of his having been
such Holder; and such defaulted interest may be paid by the Company, at its
election in each case, as provided in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any defaulted interest to
the persons in whose names any such Securities (or their respective
predecessor Securities) are registered at the close of business on a
special record date for the payment of such defaulted interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each
Security of such Series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such defaulted interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such defaulted interest
in respect of Securities of such Series which shall be not more than 15 nor
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such defaulted interest and the special
record date thereof to be mailed, first class postage prepaid, to each
Holder at his address as it appears in the Security Register, not less than
10 days prior to such special record date. Notice of the proposed payment
of such defaulted interest and the special record date therefor having been
mailed as aforesaid, such defaulted interest in respect of Securities of
such Series shall be paid to the person in whose names such Securities (or
their respective predecessor Securities) are registered on such special
record date and such defaulted interest shall no longer be payable pursuant
to the following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that
Series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.8 Registration, Transfer and Exchange. The Company will cause to
be kept at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each Series of Securities a register or registers (herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration and the registration of the transfer of, the Securities. The
Trustee is hereby appointed Security registrar for purposes of registering, and
registering transfers of, the Securities.
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Upon surrender for registration of transfer of any Security of any Series
at any such office or agency to be maintained for the purpose as provided in
Section 3.2, the Company shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or transferees a new
Security or Securities of such Series and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one Security
is executed, authenticated and delivered with respect to any Security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.
At the option of the Holder thereof, Securities of any Series (other than a
Global Security, except as set forth below) may be exchanged for a Security or
Securities of such Series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 3.2 and upon payment, if the Company shall so require,
of the charge hereinafter provided. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be promptly cancelled and disposed of by
the Trustee and the Trustee will deliver a certificate of disposition thereof
to the Company.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other
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governmental charge that may be imposed in connection with any transfer or
exchange of Securities, other than exchanges pursuant to Sections 2.11, 8.5 or
12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a 15-day period prior to the day of mailing of the
relevant notice of redemption or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not redeemed.
Notwithstanding any other provisions of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities of a
Series may not be transferred except as a whole by the Depositary for such
Series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such Series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a Series represented by
one or more Global Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible under Section 2.4,
the Company shall appoint a successor Depositary with respect to such
Securities. If a successor Depositary for such Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 2.3 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Company will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such Series, will authenticate and deliver, Securities of such
Series in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Securities in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any Series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series in definitive
registered form without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities, in exchange for such Global Security
or Securities.
If an Event of Default occurs and is continuing with respect to Securities
of any Series issued in the form of one or more Global Securities, upon written
notice from the Depositary, the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such Series, will authenticate and deliver, Securities
of such Series in definitive registered forms without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities, representing such Securities, in exchange for
such Global Security or Securities.
If specified by the Company pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same Series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the
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Company shall execute, and the Trustee shall authenticate and deliver, without
service charge to the Holder,
(i) to the Person specified by such Depositary a new Security or
Securities of the same Series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form without Coupons, in authorized denominations, such Global
Security shall be cancelled by the Trustee or an agent of the Company or the
Trustee. Securities in definitive registered form without Coupons issued in
exchange for a Global Security pursuant to this Section 2.8 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or agent of the Company or
the Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated or defaced or
be destroyed, lost or stolen, then, in the absence of notice to the Company or
the Trustee that the Security has been acquired by a bona fide purchaser, the
Company shall execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and make available for delivery a new
Security of the same Series and of like tenor and principal amount and with the
same terms and conditions, bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated or defaced Security or in lieu of
and substitution for the Security so destroyed, lost or stolen. In every case
the applicant for a substitute Security shall furnish to the Company and to the
Trustee and to any agent of the Company or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and in the case of mutilation or defacement shall surrender
the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company may,
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instead of issuing a substitute Security, pay or authorize, the payment of the
same (without surrender thereof except in the case of a mutilated or defaced
Security); provided, however, that unless otherwise provided pursuant to Section
2.3, the applicant for such payment shall furnish to the Company and to the
Trustee and any agent of the Company or the Trustee such security or indemnity
as any of them may require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substitute Security of any Series issued pursuant to the provisions
of this Section by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such Series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by the law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Company or any agent of the Company or the
Trustee, be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of this
Indenture. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold and all Securities so delivered shall be promptly cancelled by
the Trustee. The Trustee shall return cancelled Securities held by it or provide
a certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any Series, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form reasonably acceptable to the Trustee). Temporary Securities of any
Series shall be issuable of any authorized denomination, and substantially in
the form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive Securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge to the
Holder at each office or agency to be maintained by the Company for that purpose
pursuant to Section 3.2, and the Trustee shall authenticate and make available
for
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delivery in exchange for such temporary Securities of such Series an equal
aggregate principal amount of definitive Securities of the same Series of
authorized denominations. Until so exchanged, the temporary Securities of any
Series shall be entitled to the same benefits under this Indenture as definitive
Securities of such Series.
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants and
agrees for the benefit of each particular Series of Securities that it will duly
and punctually pay or cause to be paid the principal of, and interest on, each
of the Securities of such Series in accordance with the terms of such Securities
and in the Coupons, if any, appertaining thereto and in this Indenture. The
interest on Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof and at the option of the Company may be
paid by wire transfer or by mailing checks for such interest payable to or upon
the written order of such Holders at their last addresses as they appear on the
Security Register.
Notwithstanding the provisions of Section 2.3 and Section 2.7, unless
otherwise specified as contemplated by Section 2.3, payment of principal of and
any interest on any Security in definitive global form shall be made to the
Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat a Person as the Holder of
such principal amount of Outstanding Securities represented by a definitive
global Security as shall be specified in a written statement of the Holder of
such definitive global Security.
SECTION 3.2 Offices for Payment, etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series: an
office or agency (a) where the Securities may be presented for payment, (b)
where the Securities may be presented for registration of transfer
and for exchange as provided in this Indenture, and (c) where notices and
demands may be served upon the Company in respect of the Securities of any
Series or this Indenture.
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The Company will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. In case the Company
shall fail to so designate or maintain any such office or agency or shall fail
to give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Corporate
Trust Office. Unless otherwise specified pursuant to Section 2.3, the Trustee is
hereby appointed Paying Agent.
SECTION 3.3 Paying Agents. Whenever the Company shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any Series, it
will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such Agent shall agree with the Trustee, subject to the provisions of
this Section.
(a) that it will hold all sums received by it as such Agent for the payment
of the principal of or interest on the Securities of such Series (whether such
sums have been paid to it by the Company or by any other obligor on the
Securities of such Series) in trust for the benefit of the Holders of the
Securities of such Series, if any, or of the Trustee, and upon the occurrence of
an Event of Default and upon the written request of the Trustee, pay over all
such sums received by it to the Trustee, and
(b) that it will give the Trustee notice of any failure by the Company (or
by any other obligor on the Securities of such Series) to make any payment of
the principal of or interest on the Securities of such Series when the same
shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner with the
Paying Agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such Series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such Series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Company will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Company may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all Series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such Series by the Company or any Paying
Agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
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Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.4 Written Statement to Trustee. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company ending
after the date hereof, a brief certificate (which need not comply with Section
11.5) from the principal executive, financial or accounting officer of the
Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture), and if the Company shall not be in
compliance, specifying all such defaults or non-compliance and the nature and
status thereof.
SECTION 3.5 Limitation on Liens. (a) The Company shall not, and shall not
permit any Subsidiary to, incur any Debt secured by a Lien on any Principal
Property without making effective provision for securing all Outstanding
Securities of each Series having the benefit of this covenant equally and
ratably with such Debt as to such Principal Property.
(b) With respect to any particular Series of Securities, the foregoing
restrictions will not apply to: (i) Liens existing at the date of original
issuance of such Series of Securities; (ii) any Liens securing Debt owed by the
Company to one or more Subsidiaries of the Company; (iii) Liens on any Principal
Property of a Person existing prior to the time (A) such Person became a
Subsidiary of the Company, (B) such Person merges into or consolidates with a
Subsidiary of the Company or (C) another Subsidiary of the Company merges into
or consolidates with such Person (in a transaction in which such Person becomes
a Subsidiary of the Company); (iv) Liens on any Principal Property existing at
the time of acquisition thereof; (v) Liens on any Principal Property to secure
Debt incurred for the purpose of financing all or any part of the purchase price
or the cost of construction or improvement of the Principal Property subject to
such Liens in an aggregate principal amount not to exceed the fair market value
of such property, construction or improvements; (vi) Liens on any Principal
Property of the Company or any Subsidiary in favor of governmental bodies to
secure certain advance or progress payments pursuant to any contract or statute;
and (vii) Liens to secure any extension, renewal, refinancing or refunding (or
successive extensions, renewals, refinancings or refundings), in whole or in
part, of any Debt secured by Liens referred to in the foregoing clauses (i) to
(vi), so long as such Lien does not extend to any other property and the Debt so
secured is not increased.
(c) Notwithstanding the foregoing, the Company or any Subsidiary may incur
Debt secured by Liens which otherwise would be subject to the foregoing
restrictions, in an aggregate amount which, together with all other such Debt
outstanding secured by Liens and all Attributable Debt outstanding in respect of
Sale and Leaseback Transactions (other than as permitted by Section 3.6(a), does
not exceed 10% of Consolidated Net Tangible Assets.
SECTION 3.6 Limitation on Sale and Leaseback Transactions. (a) The Company
shall not, and shall not permit any Subsidiary to, enter into any Sale and
Leaseback Transaction on any Principal Property (except for a period not
exceeding three years) unless: (i) the Company or such Subsidiary would be
entitled to incur a Lien to secure Debt by reason of the provisions described in
clauses (i) through (vii) of Section 3.5(b) in an amount equal to the
Attributable Debt of such Sale and Leaseback Transaction without equally and
ratably securing all Outstanding Securities of each series having the benefit of
this covenant or (ii) the Company or such Subsidiary applies within 180 days an
amount equal to, in the case of a sale or transfer for cash, the net proceeds
(not exceeding the net book value), and, otherwise, an amount equal to the fair
value (as determined by its Board of Directors), of the property so leased to
(A) the retirement of Securities or other Funded Debt of the Company or such
Subsidiary or (B) to the acquisition of property which constitutes a Principal
Property.
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(b) Notwithstanding the foregoing, the Company or any Subsidiary may enter
into a Sale and Leaseback Transaction which would otherwise be subject to the
foregoing restriction, provided the amount of Attributable Debt in respect of
such Sale and Leaseback Transaction, together with all other such Attributable
Debt outstanding and all Debt outstanding secured by Liens (other than as
permitted by Section 3.5(b)), does not exceed 10% of Consolidated Net Tangible
Assets.
SECTION 3.7 Limitation on Subsidiary Funded Debt and Preferred Stock. The
Company will not permit any Subsidiary of the Company having a Principal
Property to incur or suffer to exist any Funded Debt or issue any Preferred
Stock except: (i) Funded Debt outstanding under the Bank Credit Facility; (ii)
Funded Debt or Preferred Stock outstanding on the date of original issuance of
the Debt Securities of a particular series; (iii) Funded Debt or Preferred Stock
issued to and held by the Company or a Subsidiary of the Company; (iv) Funded
Debt incurred or Preferred Stock issued by a Person prior to the time (A) such
Person became a Subsidiary of the Company, (B) such Person merges into or
consolidates with a Subsidiary of the Company or (C) another Subsidiary of the
Company merges into or consolidates with such Person (in a transaction in which
such Person becomes a Subsidiary of the Company); (v) Funded Debt or Preferred
Stock incurred for the purpose of financing all or any part of the purchase
price or the cost of construction of or improvements to the property of the
Company or any of its Subsidiaries in an aggregate principal amount or
liquidation preference, as the case may be, not to exceed the fair market value
of such property, construction or improvements; and (vi) Funded Debt or
Preferred Stock that is exchanged for, or the proceeds of which are used to
refinance or refund, any Funded Debt or Preferred Stock permitted to be
outstanding pursuant to clauses (i) through (v) (or any extension or renewal
thereof) in an aggregate principal amount or liquidation preference, as the case
may be (which, in the case of a Discount Security, shall be the issue price
thereof), not to exceed the principal amount of the Funded Debt or the
liquidation preference of the Preferred Stock, as the case may be, so exchanged,
refinanced or refunded (which, in the case of a Discount Security, shall be the
accreted value thereof).
Notwithstanding the foregoing, the Company's Subsidiaries may incur Funded
Debt and Preferred Stock in an aggregate principal amount and liquidation
preference that does not exceed 10% of Consolidated Net Tangible Assets.
SECTION 3.8 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 3.5, 3.6 or 3.7 with respect to the Securities of any Series if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such Series shall either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
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ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Registered Securities of such Series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant to
Section 2.3 for noninterest bearing Registered Securities in each year, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar for
such Series and all of the Securities of any Series are Registered Securities,
such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
of each Series of Registered Securities contained in the most recent list
furnished to it as provided in Section 4.1 or maintained by the Trustee in
its capacity as Security registrar for such Series, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 4.1
upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has
owned a Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in
which case the applicants must all hold Securities of such Series) or with
Holders of all Securities with respect to their rights under this Indenture
or under such Securities and such application is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Registered Securities of such Series or of all Registered
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section, as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such Series or all Holders of Registered
Securities, as the case may be, whose name and address appears in the
information preserved
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at the time by the Trustee in accordance with the provisions of subsection
(a) of this Section, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such Series or
of all Securities, as the case may be, or could be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of such order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall
be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
the provisions of subsection (b) of this Section, regardless of the source
from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions and any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 of Section 15(d) of the
Securities Exchange Act of 1934, or if the Company is not required to file
information, documents, or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents, and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance
by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents, and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time
to time by the Commission.
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ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default" with respect to Securities of any Series wherever
used herein, means any one of the following events which shall have occurred and
be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) unless it is either inapplicable to
a particular Series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or resolution of the Board of Directors establishing
such Series of Securities or in the form of Security for such Series.
(a) default in the payment of any installment of interest upon any of the
Securities of such Series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any of
the Securities of such Series as and when the same shall become due and payable,
either at Maturity, upon any redemption, by declaration or otherwise; or
(c) default in the performance, or breach of any covenant or warranty of
the Company contained in the Securities of such Series or in this Indenture
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of a Series of
Securities other than that Series), and continuance of such default or breach
for a period of 30 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
that Series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(d) the occurrence of an event of default, as defined, under one or more
mortgages, indentures or other instruments under which there is issued or by
which there is issued or by which there is secured or evidenced Indebtedness of
the Company or any of its Subsidiaries exceeding $10,000,000 in the aggregate,
which results in such Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise become due and payable, and such
acceleration is not repaid or refunded within 30 days after such acceleration;
or
(e) final judgments involving aggregate uninsured liability in excess of
$10,000,000 shall be rendered against the Company or any Subsidiary by a court
of competent jurisdiction and shall remain undischarged for a period (during
which execution shall not be effectively stayed) of 60 days after such judgment
becomes final and nonappealable; or
(f) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of all or any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
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the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or
(g) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of all or any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(h) any other Event of Default provided with respect to Securities of such
Series.
If an Event of Default (other than an Event of Default described in Section
5.1(f) or 5.1(g) occurs and is continuing with respect to the Securities of any
Series, then and in each and every such case, unless the principal of all
Securities of such Series shall have already become due and payable, either the
Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount of the Securities of such Series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such Holders),
may declare the entire principal (or, if the Securities of such affected Series
are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Series) of, plus accrued and unpaid interest on,
all the Securities of such Series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable. If an Event of Default described in Section 5.1(f) or 5.1(g) occurs and
is continuing with respect to the Securities of any Series, then and in each and
every such case, unless the principal of all Securities of such Series shall
have already become due and payable, the entire principal (or, if the Securities
of such affected Series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such Series) of, plus accrued and
unpaid interest on, all the Securities of all Series shall become and shall be
immediately due and payable, without any declaration or act on the part of the
Trustee or any Holder. These provisions, however, are subject to the condition
that if at any time after the principal (or, if the Securities of such affected
Series are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Series) of the Securities of such Series shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all the
Securities of such Series and the principal of any and all Securities of such
Series which shall have become due otherwise than by such acceleration (with
interest upon such principal) and, to the extent that payment of such interest
is enforceable under applicable law, upon overdue installments of interest, at
the same rate as the rate of interest or yield to maturity (in the case of
Discount Securities) specified in the Securities of such Series to the date of
such payment or deposit) and in Dollars such amount as shall be sufficient to
cover reasonable compensation to the Trustee, its agents, attorneys and counsel
and all other expenses and liabilities incurred, and all advances with interest
made, by the Trustee, its agents, attorneys and counsel and if any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such Series which shall have become due by such acceleration,
shall have been remedied, then and in every such case the Holders of a majority
in aggregate principal amount of the Securities of such Series then Outstanding,
by written notice to the Company and to the Trustee for the Securities of such
Series, may waive all defaults and rescind and annul such declaration and its
consequences; but no such waiver
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or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Discount Securities shall have been accelerated and declared due and payable
pursuant to the provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal amount of such
Discount Securities shall be deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in
full of the Discount Securities.
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove Debt.
The Company covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon Maturity or
upon any redemption or by declaration or otherwise, then upon demand of the
Trustee for the Securities of such Series, the Company will pay to the Trustee
for the Securities of such Series for the benefit of the Holders of the
Securities of such Series the whole amount that then shall have become due and
payable on all Securities of such Series for principal of or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest or yield to maturity (in the case of Discount Securities) specified
in the Securities of such Series); and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to, and all expenses and liabilities incurred and all
advances with interest made by, the Trustee and each predecessor Trustee except
as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Securities of any Series to the persons entitled thereto,
whether or not the principal of and interest on the Securities of such Series
are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such Series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or State bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective or
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of
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whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest (or, if the Securities of any Series are Discount Securities, such
portion of the principal amount as may be specified in the terms of such Series)
owing and unpaid in respect of the Securities of any Series, and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation to, and
all expenses and liabilities incurred and all advances with interest made by,
the Trustee and each predecessor Trustee, and their respective agents, attorneys
and counsel, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Company or
other obligor upon all Securities or any Series, or to the creditors or property
of the Company or such obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the Trustee
for the Securities of such Series, and, in the event that such Trustee shall
consent to the making of payments directly to the Securityholders, to pay to
such Trustee such amounts as shall be sufficient to cover reasonable
compensation to, and all expenses and liabilities incurred and all advances with
interest made by, such Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel and all other amounts due to such Trustee or any
predecessor Trustee pursuant to Section 6.7, except as a result of Trustee's
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee for the Securities of such
Series without the possession of any of the Securities of such Series or the
production thereof at any trial or other proceedings relative thereto, any such
action or proceedings instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee for the Securities of such Series
(and also any proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Securities in respect to which such action was
taken, and it shall not be necessary to make any Holders of such Securities
appertaining to such Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the Trustee
for the Securities of such Series pursuant to this Article in respect of the
Securities of any Series shall be applied in the following order at the date or
dates fixed by such Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several Securities in
respect of which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such Series in reduced principal
amounts in exchange for the presented Securities of like Series if only
partially paid, or upon surrender thereof if fully paid:
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FIRST: To the payment of costs and expenses applicable to such Series in
respect of which moneys have been collected, including reasonable compensation
to, and all expenses and liabilities incurred and all advances with interest
made by, the Trustee and each predecessor Trustee and their respective agents
and attorneys and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.7, except as a result of Trustee's negligence or
bad faith;
SECOND: To the payment of the amounts then due and unpaid for interest on
the Securities of such Series for which principal is not yet due and payable in
respect of which moneys have been collected, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference, according to
the amounts then due and payable on such Securities for interest;
THIRD: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities of such Series for which principal is due and
payable in respect of which moneys have been collected, such payments to be made
ratably to the persons entitled thereto, without discrimination or preference,
according to the amounts then due and payable on such Securities of principal
and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto;
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee for the Securities of any Series or any Holder shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to the determination in any such proceeding, the Company, the Trustee and the
Holders shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.5 Limitations on Suits by Securityholders. No Holder of any
Security of any Series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of any Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such Series then Outstanding
shall have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity, as it may require, against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
during such 60 day period by Holders of a majority in principal amount of the
Securities of such Series then Outstanding; it being understood and intended,
and being expressly covenanted by the taker and Holder of every Security or
Coupon with every other taker and Holder of a Security or Coupon and the
Trustee, that no one or more Holders of Securities of any Series or Coupons
appertaining to such Securities shall have any right in any manner whatever, by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or Coupons
appertaining to such Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable Series and Coupons
appertaining to such Securities.
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SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any provision in this Indenture and any provision of any
Security, the right of any Holder of any Security or Coupon to receive payment
of the principal of and (subject to Section 2.7) interest on such Security or
Coupon at the respective rates, in the respective amount on or after the
respective due dates expressed in such Security or Coupon, and to institute suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 2.9 and Section 5.5, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.5, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with each
Series treated as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such Series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture; and provided further that the Trustee,
being advised by counsel, shall have the right to decline to follow any such
direction if the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forbearance specified in or
pursuant to such direction would be unduly prejudicial to the interest of
Holders of the Securities of all Series so affected not joining in the giving of
said direction.
SECTION 5.9 Waiver of Past Defaults. The Holder of not less than a majority
in aggregate principal amount of the Securities of any Series at the time
Outstanding may on behalf of the Holders of all the Securities of such Series
waive any past default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of such Series.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security or Coupon,
by his acceptance thereof, shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the
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claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any Securities
holding in the aggregate more than 10% instituted by an Securityholder for the
enforcement of the payment of the principal of or interest on any Security on or
after the due date expressed in such Security or any date fixed for redemption.
SECTION 5.11 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of the Trustee.
(a) If an Event of Default has occurred and is continuing with respect to
the Securities of any Series, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to
the Securities of any Series:
(i) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming on their face to the requirements of this
Indenture. However, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform on their face to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
failure to act or its own willful misconduct, except that:
(i) the paragraph (c) does not limit the effect of paragraph (b) of
this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
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(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 6.2 Rights of Trustee. Subject to Section 6.1 and the provisions of
the Trust Indenture Act:
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
(d) The Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities or Coupons and
may otherwise deal with the Company or its affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, registrar or co-registrar
may do the same with like rights. However, the Trustee must comply with Sections
6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, it shall
not be responsible for any statement in the registration statement for the
Securities under the Securities Act of 1933 or in the Indenture or the
Securities (other than its certificate of authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is continuing with
respect to any Securities of any Series and if it is known to the Trustee
through oral or written notice to a corporate trust officer, the Trustee shall
give to each Securityholder of such Series notice of the default within 90 days
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after such default occurs. Except in the case of a default described in Section
5.1(a) or (b), the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice
is in the interest of Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each June 1
beginning with the June 1 following the date of this Indenture, the Trustee
shall mail to each Securityholder of any Series and each other person specified
in TIA Section 313(c) a brief report dated as of such June 1 that complies with
TIA Section 313(a) to the extent required thereby. The Trustee also shall comply
with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders of any
Series shall be filed with the Commission and each securities exchange on which
the Securities of any Series are listed. The Company agrees promptly to notify
the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time in Dollars such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances with interest thereon incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances with interest thereon and disbursements
of its agents and counsel), except to the extent any such expense, disbursement
or advance may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder (including the reasonable compensation and the
expenses, advances with interest thereon and disbursements of its agents and
counsel), except to the extent that any such loss, liability or expense may be
attributable to its negligence or bad faith.
As security for the performance of the obligations of the Company in this
Section 6.7, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
the principal of or interest, if any, on particular Securities.
"Trustee" for purposes of this Section 6.7 includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a default specified in Sections 5.1(d) and 5.1(e), such
expenses are intended to constitute expenses of administration under bankruptcy
law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any time with
respect to Securities of one or more Series by so notifying the Company;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 6.8. The Holders
of a majority in aggregate principal amount of the Outstanding Securities of any
Series may
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remove the Trustee with respect to such Series at the time outstanding by so
notifying the Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more Series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture with
respect to the Securities of such Series. The successor Trustee shall mail a
notice of its succession to Securityholders so affected. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA Section 310(a)(1) and Section 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims against Company. The Trustee
shall comply with TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
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ARTCILE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all Series may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Securityholders in person or by
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Article.
(b) In the case of Registered Securities, the ownership of such Securities
shall be proved by the Security Register.
SECTION 7.2 Proof of Execution of Instruments. Subject to Sections 6.1 and
6.2, the execution of any instrument by a Securityholder or his agent or proxy
may be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
SECTION 7.3 Holders to be Treated as Owners. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the person in whose
name any Security shall be registered upon the Security Register for such Series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notification of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and (subject to Section 2.7) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all Series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the
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Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Securities.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Securities shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all Series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the Holders of
all the Securities affected by such action
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders. The
Company, when authorized by a resolution of its Board of Directors, and the
Trustee for the Securities of any and all Series may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to such Trustee, for one or more of
the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
(b) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article Nine;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
Securities of any of all Series and, if such additional covenants are to be for
the benefit of less than all the Series of Securities stating that such
covenants are being added solely for the benefit of such Series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistence with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not materially and
adversely affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any Series as permitted
by Sections 2.1 and 2.3;
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(f) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more Series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than the one Trustee, pursuant to the requirements of Section 6.8; or
(g) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Outstanding Security of any Series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time Outstanding, notwithstanding any of the provisions of Section 8.2
SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture (voting as
one class), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee for such Series of Securities may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act as in force at
the date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such Series; provided, however, that no such
supplemental indenture shall (a) extend the Stated Maturity of any Security, or
reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount payable
on redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in the Securities or in accordance with the
terms thereof, or reduce the amount of the principal of the Discount Security
that would be due and payable upon an acceleration of the Maturity thereof
pursuant to Section 5.1 or the amount thereof provable in bankruptcy pursuant to
Section 5.2, or alter the provisions of Section 11.11 or 11.12, or impair or
affect the right of any Securityholder to institute suit for payment thereof or,
if the Securities provide therefor, any right of repayment at the option of the
Securityholders without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any Series, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular Series of Securities, or which modifies the
rights of Holders of Securities of such Series, with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other Series.
Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors certified by the secretary or an assistant secretary of
the Company authorizing the execution of any such
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supplemental indenture, and upon the filing with the Trustee for such Series of
Securities of evidence of the consent of Securityholders as aforesaid and other
documents, if any, required by Section 7.1, the Trustee for such Series of
Securities shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects such Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case such
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice thereof to the Holders of then Outstanding Securities of each
Series affected thereby, by mailing a notice thereof by first-class mail to such
Holders at their addresses as they shall appear on the Security Register, and in
each case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Every supplemental indenture
executed pursuant to this Article Eight shall conform to the requirements of the
Trust Indenture Act. Upon the execution of any supplemental indenture pursuant
to the provisions hereof, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Securities of each Series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Section 6.1 and 6.2, shall receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any Series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eight may
bear, upon the direction of the Company, a notation in form satisfactory to the
Trustee for the Securities of such Series as to any matter provided for by such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities of any Series so modified as to conform, in the opinion of the
Trustee and the Company, to any modification of this Indenture contained any
such supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such Series then
Outstanding.
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ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms. The Company
may sell, convey or lease all or substantially all of its assets to any Person,
or consolidate or merge with or into, any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation or person which acquires by sale or conveyance all or
substantially all of the assets of the Company, shall be a corporation or other
entity organized and validly existing under the laws of the United States of
America or any State thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of and interest on all of
the Securities according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Company by supplemental indenture satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation or
entity, and (ii) immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall make available for delivery any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities, together with any
Coupons appertaining thereto, which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities and
Coupons had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than conveyance by way
of lease) the Company (or any successor corporation which shall theretofore have
become such in the manner described in this Article) shall be discharged from
all obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Section 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions or
this Indenture.
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ARTICLE X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. If at any time (a)
the Company shall have paid or caused to be paid the principal of and interest
on all the Securities of any Series Outstanding hereunder (other than Securities
of such Series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (b) the Company shall have delivered to the Trustee
for cancellation all Securities of any Series theretofore authenticated (other
than any Securities of such Series and Coupons appertaining thereto which have
been destroyed, lost or stolen and which shall have been replaced or paid
provided in Section 2.9) (c) in the case of the Series of Securities where the
exact amount (including the currency of payment) of principal of and interest
due on such Securities can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such Series and not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Company shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee or any Paying
Agent to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal and
interest on all Securities of such Series on each date that such principal or
interest is due and payable and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the terms of
the Indenture and the Securities of such Series, and if, in any such case, the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company with respect to Securities of such Series, then this Indenture shall
cease to be of further effect with respect to Securities of such Series (except
as to (i) rights of registration of transfer and exchange, and the Company's
right of optional redemption (provided the Company provides sufficient funds to
effect such optional redemption), (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of Holders to receive
payments of principal therefor (but not upon acceleration) and remaining rights
of the Holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder, (v) the rights of
the Securityholders of such Series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them), and,
subject to Section 10.5, the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture with respect to such Series; provided, that the
rights of Holders of the Securities to receive amounts in respect of principal
of and interest on the Securities held by them shall not be delayed longer than
required by then applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture and the Securities of
such Series.
(i) In addition to the provisions of Section 10.1, the Company may, at its
option by or pursuant to, or otherwise in a manner or by such Persons as may be
authorized pursuant to, one or more resolutions duly adopted by the Board of
Directors, at any time with respect to the Securities of any Series, elect to
have defeasance under subsection (ii) or covenant defeasance under subsection
(iii) of this Section 10.1(b)
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be applied to the Outstanding Securities of such Series provided that provision
therefor is made for such application pursuant to Section 2.3 and the applicable
conditions thereto as set forth in this Section 10.1(b) have been satisfied.
(ii) Upon the Company's exercise of the option referenced in Section
10.1(b)(i) applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such Series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same), except for the following: (1) the rights of Holders of
Outstanding Securities of such Series to receive payments in respect of the
principal of and interest on such Securities when such payments are due, (2) the
Company's obligations with respect to such Securities under Section 2.8, 2.9,
2.11, 3.2, 6.7, 10.4 and 10.5, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (4) this Section 10.1(b).
(iii) Upon the Company's exercise of the option referenced in Section
10.1(b)(i) applicable to this subsection, the Company shall be released from its
obligations under Sections 3.5, 3.6 and 3.7 with respect to the Outstanding
Securities of such Series on and after the date the conditions set forth below
are satisfied (hereinafter, the "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such Series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document (including, without limitation, the
form of Securities of such Series), but the remainder of this Indenture and the
rights of each Holder of such Securities shall be unaffected thereby.
(iv) The following shall be the conditions to the application of Section
10.1(b)(ii) or (iii) to the Outstanding Securities of such Series:
(A) The Company shall have irrevocably deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.10
who shall agree to comply with the provisions of this Section and Section
10.1(b) applicable to it) under the terms of an irrevocable trust agreement, as
trust funds in trust solely for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of Securities of such Series, (i) cash in the currency or currency
unit required, or (ii) Government Obligations maturing as to principal and
interest in such amounts (payable in the currency in which the Securities of
such Series are payable) and at such times as are sufficient, to pay the
principal of and interest on the Outstanding Securities of such Series to
Maturity or redemption, as the case may be, or (iii) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (x) the
principal of and each installment of principal of and interest, if any, on the
Outstanding Securities of such Series on the Stated Maturity of such principal
or installment of principal or interest, if any, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Outstanding Securities of
such Series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities. Such irrevocable trust
agreement shall include, among other things, (i) provision for the payments
referenced in clauses (x) and (y) of the immediately preceding sentence, (ii)
the payment of the reasonable expenses of the Trustee incurred or to be incurred
in connection with carrying out such trust provisions, (iii) rights of
registration, transfer, substitution and exchange of
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Securities of such Series in accordance with the terms stated in this Indenture
and (iv) continuation of the rights and obligations and immunities of the
Trustee as against the Holders of Securities of such Series as stated in this
Indenture.
(B) No Event of Default or event which with notice or lapse to time or both
would constitute an Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit or, insofar as Section 5.1(d) and 5.1(e)
are concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall be deemed
satisfied until the expiration of such period).
(C) Such deposit, defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(D) The Company shall have delivered to the Trustee an Opinion of Counsel
of recognized national standing to the effect that Securityholders of such
Series will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and discharge and will be subject to Federal income
tax on the same amounts and in the same manner and at the same time as would
have been the case if such deposit and defeasance or covenant defeasance, as the
case may be, had not occurred.
(E) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions precedent
provided for herein relating to the deposit and defeasance or covenant
defeasance, as the case may be, contemplated by this Section 10.1(b) have been
complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities of
such Series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any Series, all moneys then held by any Paying Agent (other than the Company)
under the provisions of this Indenture with respect to such Series of Securities
shall, upon demand of the Company, be paid to the Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent.
Any moneys deposited with or paid to the Trustee or any Paying Agent (including
the Company acting as its own Paying Agent) for the payment of the principal of
or interest on any Security of any Series and not applied but remaining
unclaimed for two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written request of the
Company, promptly be repaid to the Company by the Trustee for such Series or
such Paying Agent (except that with respect to any amounts then held by the
Company in trust as its own Paying Agent no such request need be given and at
such time the Company shall be discharged from its request to hold such moneys
in trust as Paying Agent), and the Holder of the Securities of such Series
shall, unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect, and all liability of
the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such
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repayment with respect to moneys deposited with it for any payment in
respect to Securities of any Series, shall at the expense of the Company, mail
by first-class mail to Holders of such Securities at their addresses as they
shall appear on the Security Register notice, that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such mailing any unclaimed balance of such money then remaining will
be repaid to the Company. Anything in this Article X to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the written request of the Company any money or Government Obligations
held by it as provided in Section 10.1(b)(iv) which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect such
defeasance or covenant defeasance, as the case may be, in accordance with the
provisions of this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee is
unable to apply any funds or Government Obligations in accordance with Section
10.1 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities of any Series for which such application is prohibited shall be
revived and reinstated as if no deposit has occurred pursuant to Section 10.1
until such time as the Trustee is permitted to apply all such funds or
Government Obligations in accordance with Section 10.1; provided, however, that
if the Company has made any payment of interest on or principal of any of such
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Securityholders of such Securities to receive
such payment for the funds or Government Obligations held by the Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, in any Security, or because
of any indebtedness evidenced thereby, shall be had against any incorporator, as
such or against any past, present or future stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration of the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any Person, firm or corporation,
other than the parties hereto, any Paying Agent and their successors hereunder
and the Holders of the Securities any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
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SECTION 11.3 Successors and Assigns of Company Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders.
Any notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders or Securities
or on the Company may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Company is filed by the Company with the Trustee)
to Tosco Corporation, 72 Cummings Road, Stamford, Connecticut 06902, Attention:
General Counsel. Any notice, direction, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of Securities of any
event such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed by first-class mail, postage prepaid to such
Holders as their names and addresses appear in the Security Register within the
time prescribed. Where his Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such wavier. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in the opinions of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of any officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows
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that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters or information with respect to which is
in the possession of the Company, upon the certificate, statement or opinion of
or representations by an officer or officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable case should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of Maturity of interest on or
principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
Maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with another provision included in this Indenture which is required
by the Trust Indenture Act, such required provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each Security shall
be deemed to be a contract under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof. The use of the masculine, feminine or neuter gender
herein shall not limit in any way the applicability of any term or provision
hereof.
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ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article shall
be applicable to the Securities of any Series which are redeemable before their
final Maturity or to any sinking fund for the retirement of Securities of a
Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial Redemptions.
The election of the Company to redeem any Securities shall be evidenced by, or
pursuant to, a resolution of the Board of Directors. Notice of redemption to the
Holders of Securities of any Series required to be redeemed or to be redeemed as
a whole or in part at the option of the Company shall be given by giving notice
of such redemption as provided in Section 11.4, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such Series. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a Series designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such Series.
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The notice of redemption to each such Holder shall specify the date fixed
for redemption, the "CUSIP" number or numbers for such Securities, the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all of the Securities
of any Series are to be redeemed, the notice of redemption shall specify the
number of the Securities of such Series to be redeemed. In case any Security of
a Series is to be redeemed in part, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such Series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any Series to be redeemed at the
option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 2 days
prior to the date such notice is given to such Holders, but in any event at
least 15 days prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will have on deposit with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 3.3) in funds available on
such date an amount of money sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed at the
election of the Company, the Company will deliver to the Trustee at least 60
days prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such Series to be redeemed in whole or in part and the Trustee shall promptly
notify the Company in writing of the Securities of such Series selected for
redemption and, in the case of any Securities of such Series selected for
partial redemption, the principal amount thereof to be redeemed. However, if
less than all the Securities of any Series with differing issue dates, interest
rates and stated maturities are to be redeemed, the Company in its sole
discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date. Securities may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such Series or any multiple
thereof. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any Series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said
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date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue and, except as provided in Section 6.1 and
10.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a Place of
Payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that, payment of interest becoming due on or prior to the date fixed
for redemption shall be payable to the Holders of such Securities registered as
such on the relevant record date subject to the terms and provisions of Section
2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate or interest or
yield to maturity (in the case of a Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Trustee at least 30 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any Series
is herein referred to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of Securities of any
Series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provisions contained in the terms of such
Series. Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any Series of Securities, the Company will deliver to the Trustee a written
statement (which need not contain the
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statements required by Section 11.5) signed by an authorized officer of the
Company (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash (except as otherwise specified pursuant to Section
2.3 for the Securities of such Series), and the portion to be satisfied by
delivery or credit of Securities of such Series, (b) stating that none of the
Securities of such Series of which credit is sought has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such Series have occurred (which have not been waived or
cured) and are continuing, (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to such
Series and, if so, specifying the amount of such optional sinking fund payment
which the Company intends to pay on or before the next succeeding sinking fund
payment date and (e) specifying such sinking fund payment date. Any Securities
of such Series to be credited and required to be delivered to the Trustee in
order for the Company to be entitled to credit therefor as aforesaid which have
not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such written
statement. Such written statement shall be irrevocable and upon its receipt by
the Trustee the Company shall become unconditionally obligated to make all the
cash payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such sixtieth day, to deliver such written statement and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such Series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such Series in respect thereof and (ii) that the
Company will make no optional sinking fund payment with respect to such Series
as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding payments made in cash shall exceed $100,000 with
respect to the Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities
of such Series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $100,000 or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $100,000 is available. The Trustee shall select, in the manner
provided in Section 12.2 and giving effect to any exclusions required pursuant
to Section 12.4, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said cash, as nearly as
may be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such Series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the Company
(or the Company, if it shall so notify the Trustee in writing) shall cause
notice of redemption of the Securities of such Series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such Series at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such Series shall be added to the
next cash sinking fund payment for such Series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the Stated Maturity date of the Securities of any
particular Series (or earlier, if such Maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such Series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such Series at Maturity.
Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash or
shall otherwise provide in funds available on such date
48
<PAGE>
for the payment of all principal and interest accrued to the date fixed for
redemption on Securities to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.8 or the default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities of any
Series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such option
of the Holder to require repayment of Securities before their Stated Maturity,
for purpose of Section 10.1, shall not operate as a payment, redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereto affixed and
attested. all as of the day and year first above written.
TOSCO CORPORATION
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THE FIRST NATIONAL BANK OF BOSTON
as Trustee
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
49
<PAGE>
[FORM OF FACE OF SECURITY]
NO. $
CUSIP
TOSCO CORPORATION
_____________________% [ ] DUE _________________
Tosco Corporation, a Nevada corporation (herein called the "Issuer", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _______________ or registered
assigns, the principal sum of ____________ United States Dollars on
____________, and to pay interest, semiannually on ____________ and ____________
of each year, commencing ______________, on said principal sum, at the rate per
annum specified in the title of this [ ], on a semiannual bond equivalent
basis using a 360-day year composed of twelve 30-day months from the ___________
or the ____________, as the case may be, next preceding the date of this
[ ] to which interest has been paid, unless the date hereof is a date to
which interest has been paid in which case from the date of this [ ], or
unless no interest has been paid on this [ ], in which case from __________,
until payment of said principal sum has been made or duly provided for. Payments
of such principal and interest shall be made at the office or agency of the
issuer in ___________, which, subject to the right of the Issuer to vary or
terminate the appointment of such agency, shall initially be at the principal
office of _________[, and subject to any laws or regulations applicable thereto
in the country of any such agency and subject to the right of the Issuer to vary
or terminate the appointment of any such agency or to appoint additional and
other such agencies, at the main offices of __________ in __________]; provided,
that payment of interest may be made at the option of the Issuer by check mailed
to the address of the person entitled thereto as such address shall appear on
the Security Register. Notwithstanding the foregoing, if the date hereof is
after the ___ day of _____ or _____, as the case may be, and before the
following _______ or _______ this [ ] shall bear interest from such
_______ or _______; provided that if the Issuer shall default in the payment of
interest due on such _______ or _______, then this [__________] shall bear
interest from the next preceding __________ or __________ to which interest has
been paid or, if no interest has been paid on this [ ], from _______. The
interest so payable on any __________ or __________ will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose the Indenture referred to on the reverse hereof, be paid
to the person in whose name this [is registered at the close of business on the
__________ or __________ , as the case may be, next preceding such __________ or
__________. Reference is made to the further provisions of this [_______] set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This [ ] shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, TOSCO CORPORATION has caused this instrument to be
signed by facsimile by its duly authorized officers and has caused a facsimile
of its corporate seal to be affixed hereunto or imprinted hereon.
50
<PAGE>
TOSCO CORPORATION
By:
---------------------------------------
ATTEST:
- -----------------
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the Series designated herein referred to
in the within-mentioned Indenture.
Dated: THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By:
---------------------------------
Authorized Signatory
or
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By:
---------------------------------
as Authentication Agent
By:
---------------------------------
Authorized Signatory
51
<PAGE>
[FORM OF REVERSE OF SECURITY]
TOSCO CORPORATION
______________% [ ] DUE ______________
This [________] is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the Series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of _____________ ___, 1995 (herein
called the "Indenture"), duly executed and delivered by the Issuer to First
National Bank of Boston, as Trustee (herein called the "Trustee"), which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Issuer and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
Securities may be issued in one or more Series, which different Series may be
issued in various aggregate principal amounts, may bear interest at different
rates, which may be fixed or variable, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any), and may otherwise vary as provided in the Indenture. This
[________] is one of a Series designated as the ___% [________] Due ____________
of the Issuer, limited in aggregate principal amount to ___________.
In case an Event of Default with respect to the __% [________] Due
____________ shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of a majority of the aggregate principal amount
of the Securities at the time Outstanding of all Series to be affected (treated
as one class), evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each such Series;
provided, however, that no such supplemental indenture shall (i) extend the
Stated Maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable upon redemption thereof, or impair or
affect the right of any Holder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the Holder of each Security so affected,
or (ii) reduce the aforesaid percentage of Securities of any Series, the Holders
of which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected. It is also provided in the
Indenture that, with respect to certain defaults or Events of Default regarding
the Securities of any Series, prior to any declaration accelerating the maturity
of such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such Series (or, in the case of certain
defaults or Events of Default, all or certain Series of the Securities; may on
behalf of the Holders of all the Securities of such Series (or all or certain
Series of the Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall not,
however, apply to a default in the payment of the principal of or premium, if
any, or interest on any of the Securities. Any such consent or waiver by the
Holder of this [________] (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this [________]
52
<PAGE>
and any [___________] which may be issued in exchange or substitution
therefor, irrespective of whether or not any notation thereof is made upon this
[________] or such other [______________].
No reference herein to the Indenture, and no provision of this
[_____________] or of the Indenture, shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of [(and any
premium, if any)] and interest on this [_________] in the manner, at the
respective times, at the rate, and in the coin or currency herein prescribed.
The [___________] are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. As provided in the
Indenture, and subject to certain limitations set forth therein,
[______________] in registered form are exchangeable for one or more new
Securities of this Series and of like tenor, for the same aggregate principal
amount and of authorized denominations, as requested by the Holder surrendering
the same at the agency of the Issuer in ____________ [or ______________]. No
service charge shall be made for any such exchange, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
[The [___________________ ] may be redeemed at the option of the Issuer as
a whole, or from time to time in part, on any date after _________ and prior to
maturity, upon mailing a notice of such redemption not less than 15 nor more
than 60 days prior to the date fixed for redemption to the Holders of
[_____________] at their last registered addresses, all as further provided
in the Indenture, at the following redemption prices (expressed in percentages
of the principal amount) together in each case with accrued interest to the date
fixed for redemption:
If redeemed during the twelve-month period beginning [____________]:
Year Percentage Year Percentage
- ---- ---------- ---- ----------
[The [_____________ ] are also subject to redemption, through the operation
of the sinking fund as herein provided on ______________ and on each
______________ thereafter to and including _________________ on notice as set
forth above and at 100% of the principal amount thereto (the sinking fund
redemption.)
(As and for a sinking fund for the retirement of the [_______________] and
so long as any of the [____________] remain outstanding and unpaid, the Issuer
will pay to the Trustee in cash (subject to the right to deliver certain
[______________] in credit therefor as provided in the Indenture), on or before
_____________ and on or before ____________ in each year thereafter to and
including _______________ an amount sufficient to redeem $_________ principal
amount of the [______________] (or such lesser amount equal to the principal
amount then Outstanding) at the sinking fund redemption price.]
[At its option, the Issuer may, in cash, pay into the sinking fund for the
retirement of [_____________], except as provided in the Indenture, on or before
________________ and on or before ___________ in each year thereafter to and
including _________________, an amount sufficient to redeem an additional
principal amount of [____________] up to but not to exceed $__________ at the
sinking fund redemption price. To the extent that the right to such optional
sinking fund payment is not exercised in any year, it shall not be cumulative or
carried forward to any subsequent year.)
53
<PAGE>
Upon due presentment for registration of transfer of this [_____________]
at the office or agency of the Issuer in ______________ [or _______________], a
new [______________ ] or [____________] of this Series of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem
and treat the registered Holder hereof as the absolute owner of this
[__________] (whether or not this [________________] shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and interest hereon, and for all other purposes, and neither
the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in this
[_________], or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, of the Issuer or of any successor corporation, either directly or through
the Issuer of any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
equitable proceeding or otherwise, all such liability being expressly waived and
released by the acceptance hereof and as part of the consideration for the issue
hereof.
The Indenture with respect to any Series will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Indenture, upon
the payment of all the Securities of such Series or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a combination thereof)
sufficient for such payment in accordance with Article Ten of the indenture.
The Indenture and this [______________] shall be deemed to be contracts
made under the laws of the State of New York, and for all purposes shall be
governed by, and construed in accordance with, the laws of such State.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
54
<PAGE>
------------------------------
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
Please Insert Social Security or
Other Identifying Number of Assignee
[________________________] (Please Print or Typewrite Name and Address of
Assignee] the within [__________] and hereby does irrevocably constitute and
appoint ___________________________ Attorney to transfer said [_____] on the
books of the within-mentioned Company, with full power of substitution in the
premises.
Dated:
---------------------- -------------------------------------------
--------------------------------------------------------
*NOTICE: The signature to this assignment must
correspond with the name as written upon the face of the
[______] in every particular, without alteration
or enlargement or any change whatever.
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and instructs the Company to repay this
[___________] (or portion thereof specified below) pursuant to its terms at a
price equal to the principal amount thereof, together with interest accrued to
the date of repayment, to the undersigned:
______________________________________. Please Print or Typewrite Name and
Address of the Undersigned.
For this [___________] to be repaid the Company must receive, at the office
of the Trustee, First National Bank of Boston, or at such other place or places
of which the Company shall from time to time notify the Holder of this
[____________], during the period from and including [_________________] to and
including the close of business on [________________] (or if [_______________]
is not a Business Day, the immediately preceding Business Day), (i) this
[________] with this "Option to Elect Repayment" form duly completed, or (ii) a
communication in the form specified above in this [____________]. The exercise
of this "Option to Elect Repayment" is irrevocable.
If less than the entire principal amount of this [___________] is to be
repaid, specify the portion thereof (which shall be in increments of $1,000)
which the Holder elects to have repaid: $__________; and specify the
denomination or denominations (which shall be in increments of $1,000) of the
(__________) to be
- -----------------
* Your signatures must be guaranteed by a member of the Medallion System.
55
<PAGE>
issued to the Holder for the portion of this [__________] not being repaid
(in the absence of any such specification, one such [__________] will be issued
for the portion not being repaid): $__________.
Dated:
----------------------------
*Note: The signature on this Option to Elect Repayment must correspond
with the name as written upon the face of this [_________] in every
particular without alteration or enlargement.
Holder's Tax I.D. Number:
------------
56
Exhibit 5.1
May 17, 1995
Tosco Corporation
72 Cummings Point Road
Stamford, CT 06902
Ladies and Gentlemen:
We have acted as counsel to Tosco Corporation, a Nevada corporation (the
"Company") in connection with the preparation and filing of a Registration
Statement on Form S-3 (the "Registration Statement") relating to the public
offering of aggregate proceeds not to exceed $250,000,000 of debt securities of
the Company (the "Securities").
We have examined copies of the Restated Articles of Incorporation and Bylaws of
the Company, the Registration Statement and all exhibits thereto, and such other
corporate records and documents and papers, statutes and authorities, and have
made such examinations of law, as we have deemed necessary to form the basis for
the opinion hereinafter expressed. In our examination of such material, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
copies submitted to us. As to various questions of fact material to such
opinion, we have relied upon statements and certificates of officers and
representatives of the Company and others.
We are members of the bar of the State of New York and do not purport to be
experts on the laws of any other state or jurisdiction relevant to this opinion.
Based on the foregoing, we are of the opinion that the Securities, if and when
issued under the circumstances contemplated by the Registration Statement, have
been duly authorized and, such Securities, when issued and sold in accordance
with the Registration Statement, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
In giving such permission, we do not admit hereby that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
STROOCK & STROOCK & LAVAN
EXHIBIT 12.1
TOSCO CORPORATION
COMPUTATION OF RATIO OF EARNINGS FROM CONTINUING OPERATIONS
TO FIXED CHARGES(a)
(Dollar amounts in thousands except ratio data)
<TABLE>
<CAPTION>
Three Months
Year Ended December 31, Ended March 31,
------------------------------------------------------ ------------------
1990(b) 1991 1992 1993 1994 1994 1995(d)
-------- ------- ------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Net income (loss) from continuing operations
before accounting changes and
extraordinary items ...................... $154,346 $68,102 $30,247 $ 80,579 $ 83,843 $38,867 ($6,088)
Provision (credit) for income taxes,
net of extraordinary credit(c) ........... 19,630 2,363 20,766 51,175 50,006 27,026 (4,067)
-------- ------- ------- -------- -------- ------- -------
Pre-tax earnings (loss) from continuing
operations before accounting changes
and extraordinary items .................. $173,976 $70,465 $51,013 $131,754 $133,849 $65,893 ($10,155)
======== ======= ======= ======== ======== ======= =======
Earnings:
Pre-tax earnings (loss) from continuing
operation .............................. $173,976 $70,465 $51,013 $131,754 $133,849 $65,893 ($10,155)
Total fixed charges ....................... 36,860 27,683 29,823 57,737 72,572 17,310 21,079
Capitalized interest ...................... (682) (999)
-------- ------- ------- -------- -------- ------- -------
Total earnings from continuing
operations .............................. $210,836 $98,148 $80,836 $189,491 $205,739 $83,203 $ 9,925
======== ======= ======= ======== ======== ======= =======
Fixed charges
Interest (expensed), including the
amortization of debt expense,
discount or premium .................... $ 32,315 $22,737 $23,941 $ 48,868 $ 58,315 $13,491 $15,398
Capitalized interest ..................... 682 999
Estimated interest factor on
operating lease payments ............... 4,545 4,946 5,882 8,869 13,575 3,819 4,682
-------- ------- ------- -------- -------- ------- -------
Total fixed changes ........................ $ 36,860 $27,683 $29,823 $ 57,737 $ 72,572 $17,310 $21,079
======== ======= ======= ======== ======== ======= =======
Ratio of earnings from continuing
operations to fixed charges .............. 5.72 3.55 2.71 3.28 2.83 4.81 0.47
==== ==== ==== ==== ==== ==== ====
- ----------------
<FN>
(a) Reflects Seminole Fertilizer Corporation as a discontinued operation for
all periods.
(b) Interest for the year ended December 31, 1990 includes the write-off of
$9,329 of deferred financing costs.
(c) Reflects the provision for income taxes for 1992-1995 at regular tax rates
pursuant to the provisions of SFAS No. 109 adopted January 1, 1992.
(d) Earnings for the first quarter of 1995 were less than fixed charges by
approximately $11.1 million.
</FN>
</TABLE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Tosco Corporation on Form S-3 (File No. 33-_____) of our report, which
includes an explanatory paragraph for changes in accounting for turnarounds,
income taxes and postretirement benefits other than pensions, dated March 3,
1995, on our audits of the consolidated financial statements and the financial
statement schedules of Tosco Corporation as of December 31, 1994 and 1993, and
for the years ended December 31, 1994, 1993, and 1992, which report is included
in this Annual Report on Form 10-K. We also consent to the reference to our firm
under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Oakland, California
May 17, 1995
EXHIBIT 25.1
===============================================================================
SECURITIES ACT OF 1933 FILE NO: ______ (IF APPLICATION TO DETERMINE
ELIGIBILITY OF TRUSTEE FOR DELAYED OFFERING PURSUANT TO SECTION 305(b)(2)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)______
----------------------
THE FIRST NATIONAL BANK OF BOSTON
(Exact name of trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Gary A. Speiss, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
(Name, address and telephone number of agent for service)
----------------------
TOSCO CORPORATION
(Exact name of obligor as specified in its charter)
Nevada 95-1865716
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
72 Cummings Point Rd
Stamford, CT 06902
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of indenture securities)
===============================================================================
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency of the United States, Washington D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the Trustee. (See Notes on page 2)
None with respect to Bank of Boston Corporation.
3. through 11. Not applicable.
12. Indebtedness of the Obligor to the Trustee
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
LOAN 32,553,308.07 JUNE 15, 1995
9% NOTES 100,000,000.00 MARCH 15, 1997
9.625% NOTES 200,000,000.00 MARCH 15, 2002
LETTER OF CREDIT 9,919,928.96 ANNUAL RENEWAL
13. through 15. Not applicable.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility and
qualification.
1. A copy of the articles of association of the trustee as now in effect.
A certified copy of the Articles of Association of the trustee is filed as
Exhibit No. 1 to statement of eligibility and qualification No. 22-9514 and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
<PAGE>
A copy of the certificate of T. McLean Griffin, Cashier of the trustee, dated
February 3, 1978, as to corporate succession containing copies of the
Certificate of the Comptroller of the Currency that The Massachusetts Bank,
National Association, into which The First National Bank of Boston was merged
effective January 4, 1971, is authorized to commence the business of banking as
a national banking association, as well as a certificate as to such merger is
filed as Exhibit No. 2 to statement of eligibility and qualification No. 22-9514
and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents specified in
paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated February 6, 1978
is filed as Exhibit No. 3 to statement of eligibility and qualification
No. 22-9514 and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated
December 23, 1993 is filed as Exhibit No. 4 to statement of eligibility and
qualification No. 22-25754 and is incorporated herein by reference thereto.
5. The consent of the trustee required by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto and made a part hereof.
6. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining authority is annexed
hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item in this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
The First National Bank of Boston, a national banking association organized and
existing under the laws of The United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the Town of Canton and
Commonwealth of Massachusetts, on the 16th day of May, 1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: KECIA R. BANKS
-------------------------------------
KECIA R. BANKS
SENIOR ACCOUNT ADMINISTRATOR
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issue of, Tosco Corporation Debt
Securities, we hereby consent that reports of examinations by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: KECIA R. BANKS
-------------------------------------
KECIA R. BANKS
SENIOR ACCOUNT ADMINISTRATOR
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION, INCLUDING
DOMESTIC AND FOREIGN SUBSIDIARIES, OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on
December 31, 1994. Published in response to call made by Comptroller of the
Currency, under Title 12, United States Code, Section 161. Charter number 200.
Comptroller of the Currency Northeastern District.
ASSETS
<TABLE>
<CAPTION>
Dollar
Amounts in
Thousands
-----------
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........................ $ 1,862,093
Interest-bearing balances ........................................ 1,551,280
Securities ..................................................................... 3,935,691
Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
Federal funds sold ........................................................ 758,937
Securities purchased under agreements to resell ........................... 0
Loans and lease financing receivables:
Loans and leases, net of unearned income ..................... $25,796,462
LESS: Allowance for loan and lease losses .................... 534,630
LESS: Allocated transfer risk reserve ........................ 0
Loans and leases, net of unearned income, allowance
and reserve ............................................................. 25,261,832
Assets held in trading accounts ................................................ 840,348
Premises and fixed assets (including capitalized leases) ....................... 398,475
Other real estate owned ........................................................ 48,504
Investments in unconsolidated subsidiaries and associated
companies .................................................................... 103,670
Customers' liability to this bank on acceptances outstanding ................... 304,031
Intangible assets .............................................................. 651,394
Other assets ................................................................... 1,170,251
-----------
Total Assets ............................................................. $36,886,506
===========
LIABILITIES
Deposits:
In domestic offices ....................................................... $14,924,310
Noninterest-bearing........................................... $ 4,035,673
Interest-bearing.............................................. 10,888,637
In foreign offices, Edge and Agreement subsidiaries, and IBF's ................. 9,998,764
Noninterest-bearing........................................... 570,582
Interest-bearing.............................................. 9,428,182
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
Federal funds purchased ................................................... 2,464,904
Securities sold under agreements to repurchase ............................ 277,077
Demand notes issued to the U.S. Treasury ....................................... 364,045
Trading Liabilities ............................................................ 227,865
Other borrowed money ........................................................... 3,875,462
Mortgage indebtedness and obligations under capitalized leases ................. 14,007
Bank's liability on acceptances executed and outstanding ....................... 305,512
Subordinated notes and debentures .............................................. 979,167
Other liabilities .............................................................. 1,022,105
-----------
Total Liabilities ......................................................... $34,453,218
===========
Limited-life preferred stock and equity capital ................................ 0
</TABLE>
<PAGE>
EQUITY CAPITAL
<TABLE>
<CAPTION>
<S> <C>
Perpetual preferred stock and related surplus................................................ $ 0
Common stock................................................................................. 82,264
Surplus...................................................................................... 987,524
Undivided profits and capital reserves....................................................... 1,408,062
LESS: Net unrealized loss on marketable equity securities.................................... (39,027)
Cumulative foreign currency translation adjustments.......................................... (5,535)
Total equity capital......................................................................... 2,433,288
-----------
Total Liabilities, Limited-life preferred stock, and equity............................ $36,866,506
===========
</TABLE>
<PAGE>
I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Robert T. Jefferson
February 13, 1995
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
Charles K. Gifford
Ira Stepanian
J. Donald Monan
Directors
February 13, 1995
